Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - -x NATIONAL FEDERATION OF INDEPENDENT : BUSINESS, ET AL., Petitioners v. KATHLEEN SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. : : : : : No. 11-393

- - - - - - - - - - - - - - - - - -x and - - - - - - - - - - - - - - - - - -x FLORIDA, ET AL., Petitioners v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL. : : : : : No. 11-400

- - - - - - - - - - - - - - - - - -x Washington, D.C. Wednesday, March 28, 2012

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:19 a.m. APPEARANCES: PAUL D. CLEMENT, ESQ., Washington, D.C.; on behalf of 1

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Petitioners. EDWIN S. KNEEDLER, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of Respondents. H. BARTOW FARR, III, ESQ., Washington, D.C..; for Court-appointed amicus curiae.

2

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF PAUL D. CLEMENT, ESQ.

C O N T E N T S
PAGE

On behalf of the Petitioners ORAL ARGUMENT OF EDWIN S. KNEEDLER, ESQ. On behalf of the Respondents ORAL ARGUMENT OF H. BARTOW FARR, III, ESQ. For Court-appointed amicus curiae REBUTTAL ARGUMENT OF PAUL D. CLEMENT, ESQ. On behalf of the Petitioners

4

28

55

79

3

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

P R O C E E D I N G S (10:19 a.m.) CHIEF JUSTICE ROBERTS: We will continue

argument this morning in Case Number 11-393, National Federation of Independent Business v. Sebelius and case 11-400, Florida v. The Department of HHS. Mr. Clement. ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONERS MR. CLEMENT: please the Court: If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation. And not only can guaranteed-issue Mr. Chief Justice, and may it

and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress's basic goal of providing patient protection but also affordable care. If you do not have the individual mandate to force people into the market then community rating and guaranteed-issue will cause the cost of premiums to 4

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

skyrocket.

We can debate the order of magnitude of that

but we can't debate that the direction will be upward. We also can't debate -­ JUSTICE SOTOMAYOR: be true. Counsel, that may well

The economists are going back and forth on

that issue, and the figures vary from up 10 percent to up 30. We are not in the habit of doing the legislative

findings. What we do know is that for those States that found prices increasing, that they found various solutions to that. In one instance, and we might or may

not say that it's unconstitutional, Massachusetts passed the mandatory coverage provision. some of the other provisions. Why shouldn't we let Congress do that, if in fact, the economists prove, some of the economists prove right, that prices will spiral? What's wrong with But others adjusted

leaving it to -- in the hands of the people who should be fixing this, not us? MR. CLEMENT: Well, a couple of questions -­ First of all,

a couple of responses, Justice Sotomayor.

I think that it's very relevant here that Congress had before it as examples some of the States that had tried to impose guaranteed-issue and community rating and did not impose an individual mandate. 5

Alderson Reporting Company

And Congress rejected

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that model.

So your question is quite right in the

saying that it's not impossible to have guaranteed-issue and community-rating without an individual mandate. it's a model that Congress looked at and specifically rejected. And then, of course, there is Congress's own finding, and their finding, of course, this is (i), which is 43(a)of the government's brief in the appendix, Congress specifically found that having the individual mandate is essential to the operation of guaranteed-issue and community-rating. JUSTICE SOTOMAYOR: essential to. That's all it said it's The But

I mean, I'm looking at it.

exchanges, the State exchanges are informationgathering facilities that tell insurers what the various policies actually mean. And that has proven to be a So

cost saver in many of the States who have tried it.

why should we be striking down a cost saver when if what your argument is, was, that Congress was concerned about costs rising? Why should we assume they wouldn't have

passed that information? MR. CLEMENT: I think a couple of things.

One, you get -- I mean, I would think you are going to have to take the bitter with the sweet. And if

Congress -- if we are going to look at Congress's goal 6

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

of providing patient protection but also affordable care, we can't -- I don't think it works to just take the things that save money and cut out the things that are going to make premiums more expensive. minimum -­ JUSTICE SOTOMAYOR: I want a bottom line is But at a

why don't we let Congress fix it? MR. CLEMENT: Well, let me answer the bottom

line question, which is, no matter what you do in this case, at some point there's going to be -- if you strike down the mandate, there is going to be something for Congress to do. The question is really, what task do Do you want to give Congress

you want to give Congress.

the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care? And I think it would be better in this

situation -­ JUSTICE SOTOMAYOR: We are not taking -- If

we strike down one provision, we are not taking that power away from Congress. Congress could look at it

without the mandatory coverage provision and say, this model doesn't work; let's start from the beginning. it could choose to fix what it has. We are not Or

declaring -- one portion doesn't force Congress into any 7

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

path. MR. CLEMENT: And of course that's right,

Justice Sotomayor, and no matter what you do here, Congress will have the options available. So if you, if

you strike down only the individual mandate, Congress could say the next day: Well, that's the last thing we

ever wanted to do so we will strike down the rest of the statute immediately and then try to fix the problem. whatever you do, Congress is going to have options. question is -­ JUSTICE SCALIA: Well, there is such a thing So The

as legislative inertia, isn't there? MR. CLEMENT: That's exactly what I was

going to say, Justice Scalia, which is, I think the question for this Court is, we all recognize there is legislative inertia. And then the question is: What is

the best result in light of that reality? JUSTICE SOTOMAYOR: Are you suggesting that

we should take on more power to the Court? MR. CLEMENT: No -­ Because Congress would That's

JUSTICE SOTOMAYOR:

choose to take one path rather than another.

sort of taking onto the Court more power than one I think would want. MR. CLEMENT: And I agree. 8

Alderson Reporting Company

We are simply

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

asking this Court to take on straight on the idea of the basic remedial inquiry into severability which looks to be intent of the Congress -­ JUSTICE SCALIA: you about that. Mr. Clement, I want to ask

Why -- why do we look to the -- are you I thought

sure we look to the intent of the Congress?

that, you know, sometimes Congress says that these provisions will -- all the provisions of this Act will be severable. won't work. work. And we ignore that when the Act really When the remaining provisions just won't

Now how can you square that reality with the

proposition that what we're looking for here is what would this Congress have wanted? MR. CLEMENT: Justice Scalia. Well, two responses,

We can look at this Court's cases on

severability, and they all formulate the task a little bit differently. JUSTICE SCALIA: MR. CLEMENT: Yes, they sure do.

And every one of them talks But here's, here's the

about congressional intent. other answer -­ JUSTICE SCALIA: right? MR. CLEMENT:

That's true, but is it

It is right.

And here is how

I would answer your question, which is, when Congress 9

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

includes a severability clause, it is addressing the issue in the abstract. It doesn't say: No matter which

provisions you strike down, we absolutely, positively want what's left. JUSTICE SCALIA: All right. The consequence

of your proposition, would Congress have enacted it without this provision, okay that's the consequence. That would mean that if we struck down nothing in this legislation but the -- what you call the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.) JUSTICE SCALIA: When we strike that down,

it's clear that Congress would not have passed it without that. It was the means of getting the last And you are telling us

necessary vote in the Senate.

that the whole statute would fall because the corn husker kickback is bad. MR. CLEMENT: That can't be right. Well, Justice Scalia, I think

it can be, which is the basic proposition, that it's congressional intent that governs. Now everybody on

this Court has a slightly different way of dividing legislative intent. And I would suggest the one common

brand among every member of this Court as I understand it is you start with the text. 10

Alderson Reporting Company

Everybody can agree with

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that. JUSTICE KAGAN: with the text. So Mr. Clement, let's start

Then you suggest, and I think that there

is -- this is right, that there is a textual basis for saying that the guaranteed-issue and the community ratings provisions are tied to the mandate. And you

said -- you pointed to where that was in the findings. Is there a textual basis for anything else, because I've been unable to find one. It seems to me

that if you look at the text, the sharp dividing line is between guaranteed-issue and community ratings on the one hand, everything else on the other. MR. CLEMENT: Well, Justice Kagan I would be

delighted to take you through my view of the text and why there are other things that have to fall. The first place I would ask you to look is finding J which is on the same page 43 A. And as I read

that, that's a finding that the individual mandate is essential to the operation of the exchanges. But there

are other links between guaranteed-issue and community ratings and the exchanges. And there I think it's just And

the way that the exchanges are supposed to work. the text makes this clear is they are supposed to

provide a market where people can compare community rated insurance. That's what makes the exchanges 11

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

function. JUSTICE KAGAN: Although the exchanges

function perfectly well in Utah where there is no mandate. They function differently, but they function.

And the question is always, does Congress want half a loaf. Is half a loaf better than no loaf? And on

something like the exchanges it seems to me a perfect example where half a loaf is better than no loaf. exchanges will do something. that Congress envisioned. MR. CLEMENT: Well, Justice Kagan, I think The

They won't do everything

there are situations where half a loaf is actually worse and I want to address that. broadly. But before I do it -­

But before I do that, if I could stick with

just the exchanges. I do think the question that this Court is supposed to ask is not just whether they can limp along and they can operate independently, but whether they operate in the manner that Congress intended. And

that's where I think the exchanges really fall down. Because the vision of the exchanges was that if you got out of this current situation where health insurance is basically individualized price based on individualized underwriting and you provide community ratings, then it's going to be very easy for people to 12

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

say okay, well this is a silver policy and this is a bronze policy and this is a gold policy and we can, you know, I can just pick which insurer provides what I think is going to be the best service based on those comparable provisions. JUSTICE KAGAN: Mr. Clement, you just said You say

something which you say a lot in your brief.

the question is the manner in which it would have operated. our cases. And I think that that's not consistent with And I guess the best example would be Booker

where we decided not to sever provisions, notwithstanding that the sentencing guidelines clearly operate in a different manner now than they did when Congress passed them. than mandatory. MR. CLEMENT: Well, but Justice Kagan, I They operate as advisory rather

mean I actually think Booker supports our point as well, because there are two aspects of the remedial holding of Booker. And the first part of it, which I think

actually very much supports our point is where the majority rejects the approach of the dissent, which actually would have required nothing in the statute to have been struck, not a single word. But nonetheless this Court said, well, if you do that then all of the sentencing is basically 13

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

going to be done by a combination of the juries and the prosecutors and the judges are going to be cut out. And

the Court said the one thing we know is that's not the manner in which Congress thought that this should operate. Now later they make a different judgment about the -- which particular provisions to cut out. But I do think Booker is consistent with this way of looking at it and certainly consistent with Brock, the opinion we rely on because there the Court only reached that part of the opinion after they already found that the must-hire provision operated functionally independent from the legislative detail, so -­ JUSTICE GINSBURG: Mr. Clement, there are so I

many things in this Act that are unquestionably okay. think you would concede that reauthorizing what is the Indian Healthcare Improvement Act changes to long benefits, why make Congress redo those? I mean it's a

question of whether we say everything you do is no good, now start from scratch, or to say, yes, there are many things in here that have nothing to do frankly with the affordable healthcare and there are some that we think it's better to let Congress to decide whether it wants them in or out. So why should we say it's a choice between a 14

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would

be salvage rather than throwing out everything. MR. CLEMENT: Well, Justice Ginsburg, two One, I do think there are

kinds of responses to that.

some provisions that I would identify as being at the periphery of this statute. And I'll admit that the case

for severing those is perhaps the strongest. But I do think it is fundamentally different, because if we were here arguing that some provision on the periphery of the statute, like the Biosimilars Act or some of the provisions that you've mentioned was unconstitutional, I think you'd strike it down and you wouldn't even think hard about severability. What makes this different is that the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this Act. And then if you look at how they are textually

interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid, if you follow that through what you end up 15

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

with at the end of that process is just sort of a hollow shell. And at that point I think there is a strong

argument for not -- I mean, you can't possibly think that Congress would have passed that hollow shell without the heart of the Act. CHIEF JUSTICE ROBERTS: Well, but it would

have -- it would have passed parts of the hollow shell. I mean, a lot of this is reauthorization of appropriations that have been reauthorized for the previous 5 or 10 years and it was just more convenient for Congress to throw it in in the middle of the 2700 pages than to do it separately. I mean, can you

really suggest -- I mean, they've cited the Black Lung Benefits Act and those have nothing to do with any of the things we are talking about. MR. CLEMENT: Well, Mr. Chief Justice, they But I'm not here to tell

tried to make them germane.

you that -- some of their -- surely there are provisions that are just looking for the next legislative vehicle that is going to make it across the finish line and somebody's going to attach it to anything that is moving. I mean, I'll admit that. But the question is when everything else from the center of the Act is interconnected and has to go, if you follow me that far, then the question is 16

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

would you keep this hollowed-out shell? JUSTICE SOTOMAYOR: JUSTICE KENNEDY: Well, but it's not -­ But I'm still not sure,

what is the test -- and this was the colloquy you had with Justice Scalia with the corn husker hypothetical. So I need to know what standard you are asking me to apply. Is it whether as a rational matter separate

parts could still function, or does it focus on the intent of the Congress? If you -- suppose you had party A wants proposal number 1, party B wants proposal number 2. Completely unrelated. is milk regulation. together. One is airline rates, the other And we -- and they decide them

The procedural rules are these have to be They are both passed. Then one is

voted on as one.

declared unconstitutional. completely independently.

The other can operate Now, we know that Congress

would not have intended to pass one without the other. Is that the end of it, or is there some different test? Because we don't want to go into legislative history, that's intrusive, so we ask whether or not an objective -- as an objective rational matter one could function without -- I still don't know what the test is that we are supposed to apply. Justice Scalia asked. And this is the same question as Could you give me some help on 17

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that? MR. CLEMENT: Sure. Justice Kennedy, the

reality is I think this Court's opinions have at various times applied both strains of the analysis. JUSTICE KENNEDY: And which one -- and what

test do you suggest that we follow if we want to clarify our jurisprudence? MR. CLEMENT: I'm -- I'm a big believer in I would be perfectly

objective tests, Justice Kennedy.

happy with you to apply a more textually based objective approach. I think there are certain justices that are

more inclined to take more of a peek at legislative history, and I think if you look at the legislative history of this it would only fortify the conclusion that you would reach from a very objective textual inquiry. But I am happy to focus the Court on the

objective textual inquiry. CHIEF JUSTICE ROBERTS: understand -­ JUSTICE KENNEDY: what? MR. CLEMENT: Is whether the statute can And that objective test is I don't

operate in the manner that Congress -- that Congress intended. JUSTICE SOTOMAYOR: 18

Alderson Reporting Company

No statute can do that,

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

because once we chop off a piece of it, by definition, it's not the statute Congress passed. something more than that. MR. CLEMENT: Justice Sotomayor, every one So it has to be

of your cases, if you have a formulation for severability, if you interpret it woodenly it becomes tautological. And Justice Blackmun addressed this in

footnote 7 of the Brock opinion that we rely on, where he says: Of course it's not just -- you know, it

doesn't operate exactly in the manner because it doesn't have all the pieces, but you still make an inquiry as to whether when Congress links two provisions together and one really won't work without the other -­ JUSTICE SOTOMAYOR: So what is wrong with

the presumption that our law says, which is we presume that Congress would want to sever? simplest, most objective test? Wouldn't that be the

Going past what

Justice Scalia says we have done, okay, get rid of legislative intent altogether, which some of our colleagues in other contexts have promoted, and just say: Unless Congress tells us directly, it's not We should let them fix

severable, we shouldn't sever. their problems.

You still haven't asked -- answered me why in a democracy structured like ours, where each branch 19

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

does different things, why we should involve the Court in making the legislative judgment? MR. CLEMENT: Justice Sotomayor let me try

to answer the specific question and then answer the big picture question. could do that. The specific question is, I mean, you

You could adopt a new rule now that

basically says, look, we've severed -­ JUSTICE SOTOMAYOR: presume. cases -- ­ MR. CLEMENT: Right. But some would call that It's not a new rule. We

We've rebutted the presumption in some

JUSTICE SOTOMAYOR: judicial action. MR. CLEMENT:

I think in fairness, though,

Justice Sotomayor, to get to the point you are wanting to get to, you would have to ratchet up that presumption a couple of ticks on the scale, because the one thing -­ JUSTICE SOTOMAYOR: that? MR. CLEMENT: Well, one thing that's wrong And what's wrong with

with that, which is still at a smaller level, is that's inconsistent with virtually every statement in every one of your severability opinions, which all talk about congressional intent. JUSTICE KAGAN: 20

Alderson Reporting Company

Well, it's not inconsistent

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

with our practice, right, Mr. Clement?

I mean, you have

to go back decades and decades and decades, and I'm not sure even then you could find a piece of legislation that we refused to sever for this reason. MR. CLEMENT: Justice Kagan. I don't think that's right,

I think there are more recent examples.

A great example I think which sort of proves, and maybe is a segue to get to my broader point, is a case that involves a State statute, not a Federal statute, but I don't think anything turns on that, is Randall against Sorrell, where this Court struck down various provisions of the Vermont campaign finance law. But there were other contribution provisions that were not touched by the theory that the Court used to strike down the contribution limits. at the end of the opinion said: But this Court

There is no way to

think that the Vermont legislator would have wanted these handful of provisions there on the contribution side, so we will strike down the whole thing. And if I could make the broader point, I mean, I think the reason it makes sense in the democracy with separation of powers to in some cases sever the whole thing is because sometimes a half a loaf is worse. And a great example, if I dare say so, is Buckley. In

Buckley this Court looked at a statute that tried to, in 21

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

a coherent way, strike down limits on contributions and closely related expenditures. This Court struck down the ban on expenditures, left the contribution ban in place, and for 4 decades Congress has tried to fix what's left of the statute, largely unsuccessfully, whereas it would have I think worked much better from a democratic and separation of powers standpoint if the Court would have said: Look, expenditures are -- you can't limit

expenditures under the Constitution; the contribution provision is joined at the hip. to actually fix the problem. JUSTICE KAGAN: JUSTICE BREYER: Mr. Clement -­ Could I ask you one I take as a Give Congress a chance

question, which is a practical question.

given your answer to Justice Kennedy, you are saying let's look at it objectively and say what Congress has intended, okay? This is the mandate in the community,

this is Titles I and II, the mandate, the community, pre-existing condition, okay? Here's the rest of it,

you know, and when I look through the rest of it, I have all kinds of stuff in there. word of that, I promise. And I haven't read every

As you pointed out, there is

biosimilarity, there is breast feeding, there is promoting nurses and doctors to serve underserved areas, 22

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

there is the CLASS Act, etcetera. What do you suggest we do? I mean, should Should

we appoint a special master with an instruction? we go back to the district court? most of these. to the SG.

You haven't argued

As I hear you now, you're pretty close

I mean, you'd like it all struck down, but I don't

we are supposed to apply the objective test. know if you differ very much.

So what do you propose that we do other than spend a year reading all this and have you argument all this? MR. CLEMENT: Right. What I would propose

is the following, Justice Breyer, is you follow the argument this far and then you ask yourself whether what you have left is a hollowed-out shell or whether -­ JUSTICE BREYER: I would say the Breast

Feeding Act, the getting doctors to serve underserved areas, the biosimilar thing and drug regulation, the CLASS Act, those have nothing to do with the stuff that we've been talking about yesterday and the day before, okay? So if you ask me at that level, I would say, sure, they have nothing to do with it, they could stand on their own. The Indian thing about helping the

underserved Native Americans, all that stuff has nothing 23

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to do.

Black lung disease, nothing to do with it, okay? So that's -- do you know what you have

there?

A total off-the-cuff impression.

So that's why

I am asking you, what should I do? MR. CLEMENT: What you should do, is let me

say the following, which is follow me this far, which is mandatory, individual mandate is tied, as the government suggests, to guaranteed-issue and community rating, but the individual mandate, guaranteed-issue, and community rating together are the heart of this Act. what make the exchanges work. The exchanges in turn are critical to the tax credits, because the amount of the tax credit is key to the amount of the policy price on the exchange. The They are

exchanges are also key to the employer mandate, because the employer mandate becomes imposed on an employer if one of the employees gets insurance on the exchanges. But it doesn't stop there. Look at the These are

Medicare provision for DISH hospitals, okay?

hospitals that serve a disproportionate share of the needy. This isn't in Title I. It's in the other part But it doesn't work

that you had in your other hand.

without the mandate, community rating and guaranteed-issue. JUSTICE ALITO: 24

Alderson Reporting Company

Well, can I ask you this,

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Mr. Clement? MR. CLEMENT: JUSTICE ALITO: Sure. What would your fallback

position be if -- if we don't accept the proposition that if the mandate is declared unconstitutional, the rest of the Act, every single provision, has to fall? Other -- proposed other dispositions have been proposed. There's the Solicitor General's disposition, the recommended disposition to strike down the guaranteed-issue and community rating provisions. One

of the -- one amicus says strike down all of Title I, another one says strike down all of Title I and Title II. What -- what would you suggest? MR. CLEMENT: Well, I -- I think what I

would suggest, Justice Alito -- I don't want to be unresponsive -- is that you sort of follow the argument through and figure out what in the core of the Act falls. And then I guess my fallback would be if what's

left is a hollowed-out shell, you could just leave that standing. If you want a sort of practical answer, I mean, I do think you could just -- you know, you could use Justice Breyer's off-the-cuff as a starting point and basically say, you know, Title I and a handful of 25

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

related provisions that are very closely related to that are -- are really the heart of the Act -­ CHIEF JUSTICE ROBERTS: MR. CLEMENT: Well, that's -­

-- the bigger volume -- on the

other hand -- I mean, you could strike one and leave the other, but at a certain point -- I'm sorry, Mr. Chief Justice. CHIEF JUSTICE ROBERTS: point. MR. CLEMENT: At -- at a certain point, I Finish your certain

just think that, you know, the better answer might be to say, we've struck the heart of this Act, let's just give Congress a clean slate. If it's so easy to have that

other big volume get reenacted, they can do it in a couple of days; it won't be a big deal. because it's very -­ (Laughter.) MR. CLEMENT: -- well, but -- I mean, you If it's not,

can laugh at me if you want, but the point is, I'd rather suspect that it won't be easy. Because I rather

suspect that if you actually dug into that, there'd be something that was quite controversial in there and it couldn't be passed quickly -­ CHIEF JUSTICE ROBERTS: MR. CLEMENT: But the -- the -­

-- and that's our whole point. 26

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

CHIEF JUSTICE ROBERTS:

-- the -- the

reality of the passage -- I mean, this was a piece of legislation which, there was -- had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous

provisions that Justice Breyer was talking about, that was the price of the vote. Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the black That's why

lung provision, and I'll go along with it.

all -- many of these provisions I think were put in, not because they were unobjectionable. So presumably what

Congress would have done is they wouldn't have been able to put together, cobble together, the votes to get it through. MR. CLEMENT: Mr. Chief Justice. Well, maybe that's right,

And I don't want to, I mean, spend

all my time on -- fighting over the periphery, because I do think there are some provisions that I think you would make as -- as an exercise of your own judgment, the judgment that once you've gotten rid of the core provisions of this Act, that you would then decide to let the periphery fall with it. the periphery, that's fine. But if you want to keep

What I think is important,

though, as to the core provisions of the Act, which 27

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

aren't just the mandate community rating and guaranteed-issue, but include the exchanges, the tax credit, Medicare and Medicaid -- as to all of that, I think you do want to strike it all down to avoid a redux of Buckley. If I could reserve the remainder of my time. CHIEF JUSTICE ROBERTS: Mr. Clement. Mr. Kneedler. ORAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE RESPONDENTS MR. KNEEDLER: Thank you, Mr. Chief Justice, Thank you,

and may it please the Court: There should be no occasion for the Court in this case to consider issues of severability, because as we argue, the -- the minimum coverage provision is fully consistent with Article I of the Constitution. But if

the Court were to conclude otherwise, it should reject Petitioners' sweeping proposition that the entire Act must fall if this one provision is held unconstitutional. As an initial matter, we believe the Court should not even consider that question. The vast

majority of the provisions of this Act do not even apply to the Petitioners, but instead apply to millions of 28

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

citizens and businesses who are not before the Court -­ CHIEF JUSTICE ROBERTS: proposal actually work? How does your

Your idea is that, well, they I mean, do you

can take care of it themselves later.

contemplate them bringing litigation and saying -- I guess the insurers would be the most obvious ones -­ without -- without the mandate, the whole thing falls apart and we're going to bear a greater cost, and so the rest of the law should be struck down. And that's a whole other line of litigation? MR. KNEEDLER: Well, I -- I think the

continuing validity of any particular provision would arise in litigation that would otherwise arise under that provision by parties who are actually -­ CHIEF JUSTICE ROBERTS: action is it? of action. MR. KNEEDLER: Well, in the first place, I But what cause of

I've never heard of a severability cause

don't -- the point isn't that there has to be a -- an affirmative cause of action to decide this. You

could -- for example, to use the Medicare reimbursement issue is, one of the things that this Act does is change Medicare reimbursement rates. Well, the place where

someone adjudicates the validity of Medicare reimbursement rates is through the special statutory 29

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

review procedure for that. And the same thing is true of the Anti-Injunction Act -­ JUSTICE SCALIA: Mr. Kneedler, there -­

there are some provisions which nobody would have standing to challenge. If the provision is simply an

expenditure of Federal money, it -- it doesn't hurt anybody except the taxpayer, but the taxpayer doesn't have standing. That -- that just continues.

Even though it -- it is -- it should -- it is so closely aligned to what's been struck down that it ought to go as well. But nonetheless, that has to

continue because there's nobody in the world that can challenge it. Can that possibly be the law? MR. KNEEDLER: point, Justice Scalia. I think that proves our

This Court has repeatedly said

that just because there's -- no one may have standing to challenge -- and particularly like tax credits or taxes which are challenged only after going through the Anti-Injunction Act -- just because no one has standing doesn't mean that someone must. But beyond that -­ JUSTICE SCALIA: But -- but those are The

provisions that have been legitimately enacted. 30

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

whole issue here is whether these related provisions have been legitimately enacted, or whether they are so closely allied to one that has been held to be unconstitutional that they also have not been legitimately enacted. You -- you can't compare that to -- to cases dealing with a -- a statute that nobody denies is -- is constitutional. MR. KNEEDLER: This -- this case is directly In that case,

parallel to the Printz case, in our view.

the Court struck down several provisions of the Brady Act, but went on to say it had no business addressing the severability of other provisions that did not apply to the people before whom -­ JUSTICE SOTOMAYOR: JUSTICE BREYER: this: But -­

What he's thinking of is

I think Justice Scalia is thinking, I suspect, of

-- imagine a tax which says, this tax, amount Y, goes to purpose X, which will pay for half of purpose X. other half will come from the exchanges somehow. second half is unconstitutional. Purpose X can't The That

possibly be carried out now with only half the money. Does the government just sit there collecting half the money forever because nobody can ever challenge it? You see, there -- if it were 31

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

inextricably connected, is it enough to say, well, we won't consider that because maybe somebody else could bring that case and then there is no one else? Is that -­ MR. KNEEDLER: proper way to proceed. Severability -­ JUSTICE GINSBURG: It's not a choice between Yes, we think that is the

someone else bringing the case and a law staying in place. And what we're really talking about, as Justice

Sotomayor started this discussion, is who is the proper party to take out what isn't infected by the Court's holding -- with all these provisions where there may be no standing, one institution clearly does have standing, and that's Congress. And if Congress doesn't want the provisions that are not infected to stand, Congress can take care of it. It's a question of which -- which side -­ should the Court say, we're going to wreck the whole thing, or should the Court leave it to Congress? MR. KNEEDLER: We think the Court should One is the point

leave it to Congress for two reasons.

I'm making now about justiciability, or whether the Court can properly consider it at all. 32

Alderson Reporting Company

And the second

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

is, we think only a few provisions are inseverable from the minimum coverage provision. I just would like to -­ CHIEF JUSTICE ROBERTS: Before you go,

Mr. Kneedler, I'd like your answer to Justice Breyer's question. I think you were interrupted before that -­ MR. KNEEDLER: Yes. No. We -- we believe

that in that case, the -- the tax -- the tax provision should not be struck down. In the first place, the

Anti-Injunction Act would bar a -- a direct suit to challenge it. It would be very strange to allow a tax

to be struck down on the basis of a severability analysis. Severability arises in a case only where it's

necessary to consider what relief a party before the Court should get. The only party -­ Suppose that there was -­

JUSTICE ALITO:

suppose there was a non-severability provision in -- in this Act. If one provision were to be held

unconstitutional, then every single -- someone would have to bring a -- a separate lawsuit challenging every single other provision in the Act and say, well, one fell and the Congress said it's all -- it's a package, it can't be separated. That's your position? 33

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. KNEEDLER:

The -- the fact that that's

such a clause might make it easy doesn't change the point. Article III jurisdictional problems apply to

easy questions as well as -- as hard questions. If I could just -­ JUSTICE KENNEDY: But there's no Article III

jurisdictional problem in Justice Alito's hypothetical, that this is a remedial exercise of the Court's power to explain the consequences of its judgment in this case. MR. KNEEDLER: But -- this Court had said

that one has -- has to have standing for every degree of relief that -- that is sought. was Los Angeles v. Lyons. JUSTICE SCALIA: MR. KNEEDLER: JUSTICE SCALIA: Mr. Kneedler -­ -- Daimler/Chrysler -­ -- don't you think it's That was in Davis, that

unrealistic to say leave it to Congress, as though you are sending it back to Congress for Congress to consider it dispassionately on balance, should we have this provision or should we not have provision? what it's going to be. That's not

It's going to be, these

provisions are in effect; even though you -- a lot of you never wanted them to be in effect, and you only voted for them because you wanted to get the heart of the -- the Act, which has now been cut out; but 34

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

nonetheless these provisions are the law, and you have to get the votes to overturn them. That's an enormously

different question from whether you get the votes initially to put them into the law. What -- there, there is no way that this Court's decision is not going to distort the congressional process. Whether we strike it all down or

leave some of it in place, the congressional process will never be the same. One way or another, Congress is

going to have to reconsider this, and why isn't it better to have them reconsider it -- what -- what should I say -- in toto, rather than having some things already in the law which you have to eliminate before you can move on to consider everything on balance? MR. KNEEDLER: We think as a matter of

judicial restraint, limits on equitable remedial power limit this Court to addressing the provision that has been challenged as unconstitutional and anything else that the plaintiff seeks as relief. JUSTICE KENNEDY: JUSTICE SOTOMAYOR: please -­ CHIEF JUSTICE ROBERTS: JUSTICE KENNEDY: Justice Kennedy? Here the only -­

But in restraint -­ Mr. Kneedler would you

When you say judicial

restraint, you are echoing the earlier premise that it 35

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

increases the judicial power if the judiciary strikes down other provisions of the Act. might be quite the opposite. I suggest to you it

We would be exercising the

judicial power if one Act was -- one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That,

it seems to me can be argued at least to be a more extreme exercise of judicial power than to strike -­ than striking the whole. MR. KNEEDLER: I -- I -- I think not -­ I just don't accept the

JUSTICE KENNEDY: premise. MR. KNEEDLER:

I think not, Justice Kennedy

and then I -- I will move on. But this is exactly the situation in Printz. The Court identified the severability questions that were -- that were briefed before the Court as important ones, but said that they affect people who are -- rights and obligations of people who are not before the Court. JUSTICE SOTOMAYOR: Mr. Kneedler, move away

from the issue of whether it's a standing question or not. MR. KNEEDLER: Right. 36

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

JUSTICE SOTOMAYOR:

Make the assumption

that's an -- that this is an issue of the Court's exercise of discretion. Because the last two questions

had to do with what's wise for the Court to do, not whether it has power to do it or not. MR. KNEEDLER: Right. That -­

JUSTICE SOTOMAYOR:

So let's move beyond the

power issue, which your answers have centered on, and give me a sort of -- policy. And I know that's a,

that's a bugaboo word sometimes, but what should guide the Court's discretion? MR. KNEEDLER: Well, we think that matters

of justiciability do blend into -­ JUSTICE SOTOMAYOR: Would you please -- I've

asked you three times to move around that. MR. KNEEDLER: -- blend into, blend into

discretion, and in turn blend into the merits of the severability question. And as to that, just to answer a

question that, that several Justices have asked, we think that severability is a matter of statutory interpretation. It should be resolved by looking at the

structure and the text of the Act, and the Court may look at legislative history to figure out what the text and structure mean with respect to severability. don't -­ 37

Alderson Reporting Company

We

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

JUSTICE SCALIA: to the Eighth Amendment? through these 2,700 pages? (Laughter.) JUSTICE SCALIA: the Court to do that?

Mr. Kneedler, what happened

You really want us to go

And do you really expect

Or do you expect us to -- to give

this function to our law clerks? Is this not totally unrealistic? That we

are going to go through this enormous bill item by item and decide each one? MR. KNEEDLER: Well -­ I thought the answer was

JUSTICE SOTOMAYOR: you don't have to because -­ MR. KNEEDLER:

Well, that is, that is the -­ -- what we have to look

JUSTICE SOTOMAYOR:

at is what Congress said was essential, correct? MR. KNEEDLER: That is correct, and I'd also

like to -- going -- I just want to finish the thought I had about this being a matter of statutory interpretation. The Court's task, we submit, is not to

look at the legislative process to see whether the bill would been -- would have passed or not based on the political situation at the time, which would basically convert the Court into a function such as a whip count. That is not the Court's -­ 38

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that -­ given us. wouldn't it?

JUSTICE KAGAN: be a revolution -­ MR. KNEEDLER: JUSTICE KAGAN:

And Mr. Kneedler, that would

Yes. -- in our severability law,

MR. KNEEDLER: JUSTICE KAGAN:

It would. I mean, we have never

suggested that we were going to say, look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference. Instead, we look at the text that's actually For some people, we look only at the text.

It should be easy for Justice Scalia's clerks. (Laughter.) MR. KNEEDLER: I -- I think -- I think

JUSTICE SCALIA: easy for my clerks.

I don't care whether it's

I care whether it's easy for me.

(Laughter.) MR. KNEEDLER: that's exactly right. I think that -- I think

As I said, it is a question of

statutory interpretation. 39

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 line? that?

CHIEF JUSTICE ROBERTS: what's exactly right?

Well, how is that -­

It's a question of statutory

interpretation; that means you have to go through every line of the statute. I haven't heard your answer to

Justice Scalia's question yet. MR. KNEEDLER: Well, I -- I think in this

case there is an easy answer, and that is, Justice Kagan pointed out that, that the Act itself creates a sharp dividing line between the minimum coverage provision -­ the package of -- of reforms: The minimum coverage

provision along with the guaranteed-issue and community rating. That is one package that Congress deemed

essential. CHIEF JUSTICE ROBERTS: Where is this line? How do you know

I looked through the whole

Act, I didn't read -- well -­ MR. KNEEDLER: It is in -­ Where is the sharp

CHIEF JUSTICE ROBERTS:

MR. KNEEDLER:

It is in Congress's findings

that the -- that the minimum coverage provision -­ without it the Court -- the -- Congress said, in finding I, without that provision people would wait to get insurance, and therefore -- and cause all the adverse selection problems that arise. 40

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

CHIEF JUSTICE ROBERTS:

No, no.

That -­

that makes your case that the one provision should fall if the other does. It doesn't tell us anything about

all the other provisions. MR. KNEEDLER: Well, I -- I think -- I think

it does, because Congress said it was essential to those provisions, but it conspicuously did not say that it was essential to other provisions. CHIEF JUSTICE ROBERTS: JUSTICE ALITO: Well -­

May I ask you about the

argument that is made in the economists' amicus brief? They say that the insurance reforms impose 10-year costs of roughly $700 billion on the insurance industry, and that these costs are supposed to be offset by about 350 billion in new revenue from the individual mandate and 350 billion from the Medicaid expansion. Now if the 350

billion -- maybe you will disagree with the numbers, that they are fundamentally wrong; but assuming they are in the ballpark, if the 350 million from the individual mandate were to be lost, what would happen to the insurance industry, which would now be in the -- in the hole for $350 billion over 10 years? MR. KNEEDLER: I don't -- I mean, first of

all, for the Court to go beyond text and legislative history to try to figure out how the finances of the 41

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

bill operate, it -- it's like being a budget committee. But -- but we think the, the economists had added up the figures wrong. If there is Medicaid expansion, the

insurance -- and the insurance companies are involved in that, they are going to be reimbursed. CHIEF JUSTICE ROBERTS: isn't Medicaid expansion? But what if there

We've talked about the

individual mandate, but does the government have a position on what should happen if the Medicaid expansion is struck down? MR. KNEEDLER: We don't -- we don't think That could be But we don't think that

that that would have any effect. addressed in the next argument.

would have any effect on the -- on the rest of the -- on the rest of the Act. CHIEF JUSTICE ROBERTS: So if your -- the

government's position is that if Medicaid expansion is struck down, the rest of the Act can operate -­ MR. KNEEDLER: Yes. Yes. It's -- in the

past Congress has expanded Medicaid coverage without there being -- it's done it many times without there being a minimum coverage provision. JUSTICE KENNEDY: But I still don't

understand where you are with the answer to Justice Alito's question. 42

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Assume that there is a, a substantial probability that the 350 billion plus 350 billion equals 7 is going to be cut in half if the individual mandate is -- is stricken. possibility of that. Assume there is a significant Is it within the proper exercise

of this Court's function to impose that kind of risk? Can we say that the Congress would have intended that there be that kind of risk? MR. KNEEDLER: Well, we don't think it's in

the Court's place to look at the, at the budgetary implications, and we also -­ JUSTICE KENNEDY: But isn't that -- isn't

that the point then, why we should just assume that it is not severable? MR. KNEEDLER: No. If we -- if we lack the

JUSTICE KENNEDY:

competence to even assess whether there is a risk, then isn't this an awesome exercise of judicial power? MR. KNEEDLER: No, I don't -­ To say we are doing

JUSTICE KENNEDY:

something and we are not telling you what the consequences might be? MR. KNEEDLER: No, I don't think so, because

when you -- when you are talking about monetary consequences, you are looking through the Act, you are 43

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

looking behind the Act, rather than -- the Court's function is to look at the text and structure of the Act and what the substantive provisions of the Act themselves mean. And if I could go past -­ Mr. Kneedler, can I -- can

JUSTICE SCALIA:

you give us a prior case in -- that -- that resembles this one in which we -- we are asked to strike down what the other side says is the heart of the Act and yet leave in -- as -- as you request, leave, in effect, the rest of it? Have we ever -- most of our severability

cases, you know, involve one little aspect of the Act. The question is whether the rest. When have we ever

really struck down what was the main purpose of the Act, and left the rest in effect? MR. KNEEDLER: example of that. I think Booker is the best

In -- in Booker the mandatory

sentencing provisions were central to the act, but the Court said Congress would have preferred a statute without the mandatory provision in the Act, and the Court struck that but the rest of the sentencing guidelines remained. JUSTICE SCALIA: I think the reason -- the

reason the majority said that was they didn't think that what was essential to the Act was what had been stricken down, and that is the -- the ability of the judge to say 44

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

on his own what -- what -- what the punishment would be. I don't think that's a case where we struck -- where we excised the heart of the statute. You have another one? MR. KNEEDLER: JUSTICE SCALIA: is really -­ MR. KNEEDLER: -- to our -- to our -- that There is no example -­ There is no example. This

we have found that suggests the contrary. JUSTICE SCALIA: first impression. This is really a case of

I don't know another case where we

have been confronted with this -- with this decision. Can you take out the heart of the Act and leave everything else in place? MR. KNEEDLER: I would like to go to the But what I'd like

heart of the Act point in a moment.

to say is this is a huge Act with many provisions that are completely unrelated to market reforms and operate in different ways. And we think it would be

extraordinary in this extraordinary Act to strike all of that down because there are many provisions and it would be too hard to do it. JUSTICE BREYER: I don't think it's not

uncommon that Congress passes an act, and then there are many titles, and some of the titles have nothing to do 45

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

with the other titles.

That's a common thing.

And

you're saying you've never found an instance where they are all struck out when they have nothing to do with each other. My question is, because I hear Mr. Clement saying something not too different from what you say. He talks about things at the periphery. We can't reject

or accept an argument on severability because it's a lot of work for us. That's beside the point. But do you

think that it's possible for you and Mr. Clement, on exploring this, to -- to get together and agree on -­ (Laughter) JUSTICE BREYER: -- I mean on -- on a list

of things that are in both your opinions peripheral, then you would focus on those areas where one of you thinks it's peripheral and one of you thinks it's not peripheral. And at that point it might turn out to be At which

far fewer than we are currently imagining.

point we could hold an argument or figure out some way or somebody hold an argument and try to -- try to get those done. Is -- is that a pipe dream or is that a -­ MR. KNEEDLER: that is realistic. I -- I -- I just don't think

The Court would be doing it without

the parties, the millions of parties -­ 46

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

JUSTICE SCALIA:

You can have a conference

committee report afterwards, maybe. (Laughter) MR. KNEEDLER: No, it just -- it just is not But I would

something that a court would ordinarily do. like -­ JUSTICE SOTOMAYOR: the argument of -- of the heart? MR. KNEEDLER: Yes.

Could you get back to

JUSTICE SOTOMAYOR: do we want half a loaf or show. two analogies -­ MR. KNEEDLER:

Striking down the heart, I think those are the

Right.

And -- and -- and I

would like to discuss it again in terms of the text and structure of the Act. We have very important

indications from the structure of this Act that the whole thing is not supposed to fall. The -- the most basic one is, the notion that Congress would have intended the whole Act to fall if there couldn't be a minimum coverage provision is refuted by the fact that there are many, many provisions of this Act already in effect without a minimum coverage provision. Two point -- 2 and-a-half million people

under 26 have gotten insurance by one of the insurance requirements. Three point two billion dollars -­ 47

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 coverage.

JUSTICE SCALIA:

Anticipation of the minimum

That's going to bankrupt the insurance

companies if not the States, unless this minimum coverage provision comes into effect. MR. KNEEDLER: There is no reason to think The

it's going to -- it's going to bankrupt anyone.

costs will be set to cover those -- to cover those amounts. JUSTICE SOTOMAYOR: I thought that the

26-year-olds were saying that they were healthy and didn't need insurance yesterday. going to bankrupt the -­ MR. KNEEDLER: Two and-a-half -- 2.5 million So today they are

people would be thrown off the insurance roles if the Court were to say that. Congress made many changes to

Medicare rates that have gone into effect for the Congress -- for the courts to have to unwind millions of Medicare reimbursement rates. Medicare has -- has

covered 32 million insurance -- preventive care visits by patients as a result of -- of this Act. CHIEF JUSTICE ROBERTS: All of that was

based on the assumption that the mandate was -- was constitutional. And if -- that certainly doesn't stop

us from reaching our own determination on that. MR. KNEEDLER: No, what I'm saying is it's a 48

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

question of legislative intent, and we have a very fundamental indication of legislative intent that Congress did not mean the whole Act to fall if -- if -­ without the minimum coverage provision, because we have many provisions that are operating now without that. But there's a further indication about why the line should be drawn where I've suggested, which is the package of these particular provisions. All the

other provisions of the Act would continue to advance Congress's goal, the test that was articulated in Booker but it's been said in Regan and other cases. You look

to whether the other provisions can continue to advance the purposes of the Act. Here they unquestionably can. The public

health -- the broad public health purposes of the Act that are unrelated to the minimum coverage provision, but also that the other provisions designed to enhance access to affordable care. The employer responsibility

provision, the credit for small businesses, which is already in effect, by the way, and affecting many small businesses -­ JUSTICE SCALIA: But many people might

not -- many of the people in Congress might not have voted for those provisions if -- if the central part of this statute was not adopted. 49

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. KNEEDLER: JUSTICE SCALIA:

But that -­ I mean, you know, you're -­

to say that we're effectuating the intent of Congress is just unrealistic. Once you've cut the guts out of it,

who knows, who knows which of them were really desired by Congress on their own and which ones weren't. MR. KNEEDLER: The question for the Court is

Congress having passed the law by whatever majority there might be in one House or the other, Congress having passed the law, what at that point is -- is -- is the legislative intent embodied in the law Congress has actually passed? CHIEF JUSTICE ROBERTS: Well, that's right.

But the problem is, straight from the title we have two complimentary purposes, patient protection and affordable care. And you can't look at something and

say this promotes affordable care, therefore, it's consistent with Congress's intent. a balanced intent. Because Congress had

You can't look at another provision

and say this promotes patient protection without asking if it's affordable. So, it seems to me what is going to promote Congress's purpose, that's just an inquiry that you can't carry out. MR. KNEEDLER: No, with respect, I disagree, 50

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

because I think it's evident that Congress's purpose was to expand access to affordable care. discreet ways. It did it in

It did it by the penalty on employers It did it It did it

that don't -- that don't offer suitable care. by offering tax credits to small employers. by offering tax credits to purchasers.

All of those are

a variety of ways that continue to further Congress's goal, and -- and most of all, Medicaid, which is -­ which is unrelated to the -- to the private insurance market altogether. And in adopting those other provisions governing employers and whatnot, Congress built on its prior experience of using the tax code, which it is -­ for a long period of time Congress has subsidized -­ JUSTICE KENNEDY: about the employers. I don't quite understand

You're -- you are saying Congress

mandated employers to buy something that Congress itself has not contemplated? I don't understand that. No. Employer coverage -- 150

MR. KNEEDLER:

million people in this country already get their insurance through -- through their employers. What

Congress did in seeking to augment that was to add a provision requiring employers to purchase insurance -­ JUSTICE KENNEDY: Based on the assumption

that the cost of those policies would be lowered by -­ 51

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

by certain provisions which are by hypothesis -- we are not sure -- by hypothesis are in doubt. MR. KNEEDLER: No, I -- I -- I think any

cost assumptions -- there is no indication that Congress made any cost assumptions, but -- but there is no reason to think that the individual -- that the individual market, which is where the minimum coverage provision is directed, would affect that. I would like to say -- I would point out why the other things would advance Congress's goal. The

point here is that the package of three things would -­ would be contrary -- would run contrary to Congress's goal if you took out the minimum coverage provision. And here's why -- and this is reflected in the findings: If you take out minimum coverage but leave in the guaranteed-issue and community-rating, you will make matters worse. Rates will go up, and people will

be less -- fewer people covered in the individual market. JUSTICE ALITO: Well, if that is true, what

is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies? For example, the tax on high cost health 52

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

plans, which the economists in the amicus brief said would cost $217 billion over 10 years? MR. KNEEDLER: Those are -- what Congress -­

Congress did not think of those things as balancing insurance companies. Insurance companies are

participants in the market for Medicaid and -- and other things. JUSTICE KENNEDY: But you are saying we have

-- we have the expertise to make the inquiry you want us to make, i.e., the guaranteed-issue, but not the expertise that Justice Alito's question suggests we must make. MR. KNEEDLER: Well -­ I just don't understand

JUSTICE KENNEDY: your position. MR. KNEEDLER:

-- that's because -- that's

because I think this Court's function is to look at the text and structure and the legislative history of the law that Congress enacted, not the financial -- not a financial balance sheet, which doesn't appear anywhere in the law. And just -­ JUSTICE GINSBURG: You are relying on

Congress's quite explicitly tying these three things together. MR. KNEEDLER: We do. 53

Alderson Reporting Company

That's -- that's -­

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and it's not just the text of the act, but the background of the act, the experience in the state, the testimony of the National Association of Insurance Commissioners. That's the -- that's the problem Congress was addressing. There was a -- there was -- a shifting

of present actuarial risks in that market that Congress wanted to correct. And if you took the minimum coverage

provision out and left the other two provisions in, there would be laid on top of the existing shifting of present actuarial risks an additional one because the uninsured would know that they would have guaranteed access to insurance whenever they became sick. It would

make the -- it would make the adverse selection in that market problem even worse. And so what -- and Congress, trying to come up with a market-based solution to control rates in that market, has adopted something that would -- that would work to control costs by guaranteed-issue and community-rating; but, if you -- if -- if you take out the minimum coverage, that won't work. That was

Congress's assumption, again, shown by the text and legislative history of this provision. And that's why

we think those things rise or fall in a package because they cut against what Congress was trying to do. 54

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

All of the other provisions would actually increase access to affordable care and would have advantageous effects on price. Again, Congress was

invoking its traditional use of the tax code, which has long subsidized insurance through employers, has used that to impose a tax penalty on employers, to give tax credits. done. And the other thing Congress has done, those preexisting laws had their own protections for guaranteed-issue and community-rating. Effectively, This is traditional stuff that Congress has

within the large employer plans, they can't discriminate among people, they can't charge different rates. What

Congress was doing, was doing that in the other market. If it can't, that's all that should be struck from the act. CHIEF JUSTICE ROBERTS: Mr. Kneedler. Mr. Farr? ORAL ARGUMENT OF H. BARTOW FARR FOR COURT-APPOINTED AMICUS CURIAE MR. FARR: please the Court: At the outset, I would just like to say, I think that the government's position in this case that 55

Alderson Reporting Company

Thank you,

Mr. Chief Justice and may it

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the community-rating and guaranteed-issue provisions ought to be struck down is an example of the best driving out the good; because, even without the minimum coverage provision, those two provisions, guaranteed-issue and community-rating, will still open insurance markets to millions of people that were excluded under the prior system, and for millions of people will lower prices, which were raised high under the old system because of their poor health. So even though the system is not going to work precisely as Congress wanted, it would certainly serve central goals that Congress had of expanding coverage for people who were unable to get coverage or unable to get it at affordable prices. So when the government -­ JUSTICE GINSBURG: One of the points that

Mr. Kneedler made is that the price won't be affordable because -- he spoke of the adverse selection problem, that there would be so fewer people in there, the insurance companies are going to have to raise the premiums. So it's nice that Congress made it possible for more people to be covered, but the reality is they won't because they won't be able to afford the premium. MR. FARR: Well, Justice Ginsburg, let me 56

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

say two things about that. First of all, when we talk about premiums becoming less affordable, it's very important to keep in mind different groups of people, because it is not something that applies accurately to everybody. For people who were not able to get insurance before, obviously, their insurance beforehand was -- the price was essentially infinite. not able to get it at any price. They were

They will now be able

to get it at a price that they can afford. For people who are unhealthy and were able to get insurance, but perhaps not for the things that they were most concerned about, or only at very high rates, their rates will be lower under the system, even without the minimum coverage provision. Also, you have a large number of people who, under the Act -­ JUSTICE SCALIA: say -- I didn't follow that. MR. FARR: Excuse me, why do you Why?

Because -­ Why would their rates be

JUSTICE SCALIA: lower? MR. FARR:

Their rates are going to be lower

than they were under the prior system because they are going into a pool of people, rather than -- some of whom 57

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

are healthy, rather than having their rates set according to their individual health characteristics. That's why their rates were so high. JUSTICE KAGAN: But the problem, Mr. Farr,

isn't it, that they're going to a pool of people that will gradually get older and unhealthier. way the thing works. That's the

Once you say that the insurance

companies have to cover all of the sick people and all of the old people, the rates climb. More and more young

people and healthy people say, why should we participate, we can just get it later when we get sick. So they leave the market, the rates go up further, more people leave the market, and the whole system crashes and burns, becomes unsustainable. MR. FARR: Well -­ And this is not -­

JUSTICE KAGAN: MR. FARR:

Certainly. -- like what I think. What

JUSTICE KAGAN: do I know?

It's just what's reflected in Congress's

findings, that it's look -- it looks at some states and says, this system crashed and burned. It looked at

another state with the minimum coverage provision and said, this one seems to work. So we will package the

minimum coverage provision with the nondiscrimination provisions. 58

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. FARR:

Well, in a moment, I'd like to

talk about the finding; but, if I could just postpone that for a second and talk about adverse selection itself. I think one of the misconceptions here, Justice Kagan, is that Congress, having seen the experience of the states in the '90s with community-rating and guaranteed-issue, simply imposed the minimum coverage provision as a possible way of dealing with that; and, if you don't have the minimum coverage provision, then, essentially, adverse selection runs rampant. But that's not what happened.

Congress included at least half a dozen other provisions to deal with adverse selection caused by bringing in people who are less healthy into the Act. There are -- to begin with, the Act authorizes annual enrollment periods, so people can't just show up at the hospital. If they don't show up and

sign up at the right time, they at least have to wait until the time next year. That's authorized by the Act.

There -- with respect to the subsidies, there are three different things that make this important. generous. First of all, the subsidies are very For people below 200 percent of the federal

poverty line, the subsidy will cover 80 percent, on 59

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

average, of the premium which makes it attractive to them to join. The structure of the subsidies, because their income -- they create a floor for -- based on the income of the person getting the insurance, and then the government covers everything over that. And this is

important in adverse selection because if you do have a change in the mix of people, and average premiums start to rise, the government picks up the increase in the premium. The amount that the person who is getting

insured contributes remains constant at a percentage of his or her income. And the third thing -­ JUSTICE SCALIA: And there is nothing about That is

federal support that is unsustainable, right? infinite. MR. FARR:

Well, I mean, that's a fair

point, Justice Scalia; although, one of the things that happens, if you take the mandate out, while it is true that the subsidies that the government provides to any individual will increase, and they will be less efficient -- I'm not disputing that point -- actually the overall amount of the subsidies that the government will provide will decline, as the government notes itself in its brief, because there will be fewer people 60

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

getting them.

Some people will opt out of the system

even though they are getting subsidies. But I would just like to go back for one more second to the point about how the subsidies are part of what Congress was using, because the other thing is that for people below 250 percent of the Federal poverty line Congress also picks up and subsidizes the out-of-pocket costs, raising the actuarial value. So you have all of that, and then you have Congress also, unlike the States establishing -- or I should be precisely accurate -- almost all the States, establishing an age differential of up to three to one. So an insurance company, for example, that is selling a 25-year-old a policy for $4,000 can charge a 60-year-old $12,000 for exactly the same coverage. The States typically in the 90s when they were instituting these programs, they either had pure community rating, where everybody is charged the same premium, everybody regardless of their age is charged the same premium. 1. Some states had a variance of 1.5 to

Massachusetts, for example, which did have good

subsidies, but their age band was two to one. So when Congress is enacting this Act, it's not simply looking at the States and thinking: Well,

that didn't go very well; why don't we put in a minimum 61

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

coverage provision; that will solve the problem. Congress did a lot of different things to try to combat the adverse selection. Now, if I could turn to the finding, because I think this is the crux of the government's position and then the plaintiffs pick up on that, and then move --move from that to the rest of the Act. And it seems

to me, quite honestly, it's an important part because that is textual. In this whole sort of quest for what

we are trying to figure out, the finding seems to stand out as something that the Court could rely on and say here's something Congress has actually told us. But I think the real problem with the finding is the context in which Congress made it. quite clear. It's

If the Court wants to look, the finding is

on page 42 -- 43A, excuse me, of the Solicitor General's severability brief in the appendix. But the finding is made specifically in the context of interstate commerce. findings are in the Act at all. That is why the Congress wanted to

indicate to the Court, knowing that the minimum coverage provision was going to be challenged, wanted to indicate to the Court the basis on which it believed it had the power under the Commerce Clause to enact this law. Why does that make a difference with respect 62

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to finding I, which is the one that the government is relying on, and in particular the last sentence, which says "this requirement is essential to creating effective health insurance markets in which guaranteed-issue and preexisting illnesses can be covered." The reason is because the word "essential" in the Commerce Clause context doesn't have the colloquial meaning. In the Commerce Clause context So that when one

"essential" effectively means useful.

says in Lopez, when the Court says section 922(q) is not an essential part of a larger regulatory scheme of economic activity, it goes on to say, in which the regulatory scheme would be undercut if we didn't have this provision. Well, if that's all Congress means, I agree with that. The system will be undercut somewhat if you It's like

don't have the minimum coverage provision.

the word "necessary" in the Necessary and Proper Clause clause. It doesn't mean, as the Court has said on It means

numerous occasions, absolutely necessary.

conducive to, useful, advancing the objectives, advancing the aims. And it's easy to see, I think, that

that's what Congress -­ JUSTICE SCALIA: 63

Alderson Reporting Company

Is there any dictionary

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that gives that -­ MR. FARR: I'm sorry, Justice Scalia? -- that definition of Just give me one

JUSTICE SCALIA: "essential"? dictionary. MR. FARR:

It's very imaginative.

Well, but I think my point,

Justice Scalia, is that they are not using it in the true dictionary sense. JUSTICE SCALIA: How do we know that? When

people speak, I assume they are speaking English. MR. FARR: Well, I think that there are

several reasons that I would suggest that we would know that from. themselves. The first is, as I say, the findings Congress says at the very beginning, the

head of it, is Congress makes the following findings, and they are talking about the interstate -- you know, B is headed "Effects on the national economy and interstate commerce." So we know the context that

Congress is talking about. It is more or less quoting from the Court's Commerce Clause statements. But if one looks at the

very preceding finding, which is finding H, which is on 42 over onto 43, Congress at that point also uses the word "essential." In the second sentence it says "this

requirement" -- and again we're talking about the 64

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

minimum coverage provision -- is an essential part of this larger regulation of economic activity, which is, by the way, an exact quote from Lopez, in which "the absence of the requirement undercuts Federal regulation," also an exact quote from Lopez. But what it is referring to is an essential -- an essential part of ERISA, the National Health Service Act and the Affordable Care Act. It

can't possibly be, even the plaintiffs haven't argued, that those Acts would all fall in their entirety if you took out the minimum coverage provision. And as a second example of the same usage by Congress, the statute that was before the Court in Raich, section 801 of Title 21, the Court said that the regulation of intrastate drug activity, drug traffic, was essential to the regulation of interstate drug activity. Again, it is simply not conceivable that

Congress was saying one is so indispensable to the other, the way the United States uses the term here, so indispensable that if we can't regulate the intrastate traffic we don't want to regulate the interstate traffic, either. The whole law criminalizing drug

traffic would fall. So I think once you look at the finding for what I believe it says, which is we believe this is a 65

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

useful part of our regulatory scheme, which the Congress would think in its own approach would be sufficient -­ JUSTICE SOTOMAYOR: Counsel, the problem I

have is that you are ignoring the congressional findings and all of the evidence Congress had before it that community ratings and guaranteed-issuance would be a death spiral -- I think that was the word that was used -- without minimum coverage. Those are all of the

materials that are part of the legislative record here. So even if it might not be because of the structure of the Act, that's post hoc evidence. Why

should we be looking at that as opposed to what Congress had before it and use "essential" in its plain meaning: You can't have minimum coverage without what the SG is arguing, community ratings and guaranteed-issue. can't have those two without minimum coverage. MR. FARR: question. Well, I think that's a fair You

But the idea that -- that all the information

before Congress only led to the idea that you would have death spirals seems to me to be contradicted a little bit at least by the CBO report in November of 2009, which is about 4 months before the Act passed, where the CBO talks about adverse selection. Now, I want to be clear. This is at a time

when the minimum coverage provision was in the statute, 66

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

so I'm not suggesting that this is a discussion without that in it. But nonetheless, the CBO goes through and

talks about adverse selection, and points out the different provisions in the Act, the ones I have mentioned plus one other, actually, where in the first 3 years of the operation of the exchanges those insurance companies that get sort of a worse selection of consumers will be given essentially credits from insurance companies that get better selections. JUSTICE KENNEDY: So do you want us to write

an opinion saying we have concluded that there is an insignificant risk of a substantial adverse effect on the insurance companies, that's our economic conclusion, and therefore not severable? say? MR. FARR: It doesn't sound right the way That's what you want me to

you say it, Justice Kennedy. (Laughter.) MR. FARR: No, I -­ But you don't want them Do you

JUSTICE SOTOMAYOR:

to say, either, that there is a death spiral.

want -- you don't want us to make either of those two findings, I'm assuming? MR. FARR: That's correct. Now, I agree

that there is a risk and the significance of it people 67

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

can debate.

But what I think is --is lost in that

question, and I didn't mean to be whimsical about it, I think what is lost in it a little bit is what is on the other side, which is the fact that if you follow the government's suggestion, if the Court follows the government's suggestion, what is going to be lost is something we know is a central part of the Act. I mean,

indeed, if one sort of looks at the legislative history more broadly, I think much of it is directed toward the idea that guaranteed- issue and community rating were the crown jewel of the Act. The minimum coverage provision wasn't something that everybody was bragging about, it was something that was meant to be part of this package. agree with that. But the -- the point of it was to have guaranteed-issue and minimum coverage -- I mean, excuse me -- guaranteed-issue and community rating. And that's I

-- under the government's proposal, those would -- would disappear. We would go back to the old system. And

under what I think is the proper severability analysis, the -- the real question the Court is asking, should be asking, is, would Congress rather go back to the old system than to take perhaps the risk that you're talking about, Justice Kennedy. 68

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 out?

CHIEF JUSTICE ROBERTS:

You're -- you're Their -­

referring to the government's second position.

their first, of course, is that we shouldn't address this issue at all. MR. FARR: That's correct. I asked Mr. Kneedler

CHIEF JUSTICE ROBERTS:

about what procedure or process would be anticipated for people who are affected by the change in -- in the law, and change in the economic consequences. view on how that could be played out? Do you have a

It does seem to

me that if we accept your position, something -- there have to -- there has to be a broad range of consequences, whether it's additional legislation, additional litigation. Any thoughts on how that's going to play

MR. FARR:

Well, if the Court adopts the

position that I'm advocating, Mr. Chief Justice, I think what would happen is that the Court would say that the minimum coverage provision, by hypothesis of course, is unconstitutional, and the fact of that being unconstitutional does not mean the invalidation of any other provision. So under the position I'm advocating, there would no longer be challenges to the remaining part of 69

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the Act.

The -­ CHIEF JUSTICE ROBERTS: But if the challenge

is what we're questioning today, whether -- if you're an insurance company and you don't believe that you can give the coverage in the way Congress mandated it without the individual mandate, what -- what type of action do you bring in a court? MR. FARR: You -- if the Court follows the

course that I'm advocating, you do not bring an action in court, you go to Congress and you seek a change from Congress to say the minimum coverage provision has been struck down by the Court, here is our -- here -- here's the information that we have to show you what the risks are going to be. make. One of the questions earlier pointed out that States have adjusted their systems as they've gone along, as they've seen things work or not work. You know, as I was talking earlier about the -- the different ratio for -- for ages and insurance. The States have tended to change that, because they've found that having too narrow a band worked against the effectiveness of -- of their programs. But they did -­ Here are the adjustments you need to

except for in Massachusetts, they didn't enact mandates. So to answer -- I think to answer your 70

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

question directly, Mr. Chief Justice, the position I'm advocating would simply have those -- those pleas go to Congress, not in court. Now, if one -- just -- just to discuss the issue more generally, if that's helpful, I -- I think that -- that if there were situations where the Court deferred -- let's say for discretionary reasons, they just said -- the Court said we're -- we're not going to take up the question of severability and therefore not resolve it in these other situations, it certainly seems to me that in enforcement actions, for example, if the time comes in -- in 2014 and somebody applies to an insurance company for a policy -- and the insurance company says, well, we're not going to issue a policy, we don't think your risks are ones that we're willing to cover, that -- it seems to me that they could sue the insurance company and the insurance company could raise as a defense that this provision, the guaranteed-issue provision of the statute, is not enforceable because it was inseverable from the decision -- from the provision that the Court held unconstitutional in 2012. JUSTICE SCALIA: Mr. Farr, let's -- let's

consider how -- how your approach, severing as little as possible there -- thereby increases the deference that we're showing to -- to Congress. 71

Alderson Reporting Company

It seems to me it puts

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Congress in -- in this position: full effect.

This Act is still in

There is going to be this deficit that

used to be made up by the mandatory coverage provision. All that money has to come from somewhere. You can't repeal the rest of the Act because you're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new act. So the rest of

You've got to get 60 votes to repeal it. the Act is going to be the law.

So you're just put to the choice of I guess bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure. Do you really think that that is somehow showing deference to Congress and -- and respecting the democratic process? It seems to me it's a gross distortion of it. MR. FARR: Well, Your Honor, the -- the

difficulty is that it seems to me the other possibility is for the Court to make choices, particularly based on what it expects the difficulties of Congress altering the legislation after a Court ruling would be. I'm not aware of any severability decision 72

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that is -­ JUSTICE SCALIA: my approach. No, I -- that wouldn't be

My approach would say if you take the That

heart out of the statute, the statute's gone.

enables Congress to -- to do what it wants in -- in the usual fashion. And it doesn't inject us into the

process of saying, "this is good, this is bad, this is good, this is bad." It seems to me it reduces our options the most and increases Congress's the most. MR. FARR: I guess to some extent I have to

quarrel with the premise, Justice Scalia, because at least the -- the position that I'm advocating today, under which the Court would only take out the minimum coverage provision, I don't think would fit the description that you have given of taking out the heart of the statute. Now, I do think once you take out guaranteed-issue and community rating, you are getting closer to the heart of the statute. And one of the -­

one of the difficulties I think with the government's position is that I think it's harder to cabin that, to draw that bright line around it. government thinks it is. I mean, to begin with, even the government 73

Alderson Reporting Company

It's harder than the

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

seems to acknowledge, I think, that the exchanges are going to be relatively pale relatives of -- of the exchanges as they're intended to be, where you're going to have standardized products, everybody can come and make comparisons based on products that look more or less the same. But the other thing that's going to happen is with the subsidy program. The -- the way that the

subsidy program is -- is set up, the subsidy is calculated according to essentially a benchmark plan. And this -- if the Court wants to look at the provisions, they're -- they begin at page 64A of the Private Plaintiffs' brief -- again, in the appendix. The particular provision I'm talking about's at 68A, but there's a -- there's a question -- you -- you're looking essentially to calculate the premium by looking at a -­ at a standardized silver plan. First question, obviously, is, is there going to be any such plan if you don't have guaranteed-issue and community rating, if the plans can basically be individualized? But the second problem is

that, in the provision on 68A, the -- the provision that's used for calculating the subsidy, what -- what is anticipated in the provision under the -- the Act as it is now, is that you do have the floor of the income, you 74

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

would -- you would take this benchmark plan, and the government would pay -- pay the difference. And as we talked about earlier, the benchmark plan can change for age, and -- and the provision says it can be adjusted only for age. So if

in fact you even have such a thing as a benchmark plan anymore -- if the rates of people in poor health go up because of individual insurance underwriting, the government subsidy is not going to pay for that. JUSTICE KAGAN: Mr. Farr, I understood that

the answer that you gave to Justice Scalia was essentially that the minimum coverage provision was not the heart of the Act. Instead, the minimum coverage

provision was a tool to make the nondiscrimination provisions, community rating guaranteed-issue, work. So if you assume that, that all the minimum coverage is is a tool to make those provisions work, then I guess I would refocus Justice Scalia's question and say, if we know that something is just a tool to make other provisions work, shouldn't that be the case in which those other provisions are severed along with the tool? MR. FARR: No. I don't think so, because

there are -- there are many other tools to make the same things work. That's I think the point. 75

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them don't.

And if one -- the case that comes to mind is New York v. the United States, where the Court struck down the take title provision but left other -- two other incentives essentially in place. Even without the minimum coverage provision, there will be a lot of other incentives still to bring younger people into the market and to keep them in the market. And if -- if my reading of the finding is

correct, and that's all that Congress is saying, that this would be useful, it doesn't mean that it's impossible. JUSTICE BREYER: But would you -- I would

just like to hear before you leave your argument, if you want to, against what Justice Scalia just said, let's assume, contrary to what you want, that the government's position is accepted by the majority of this Court. so we now are rid, quote, of the true "heart" of the bill. Now still there are a lot of other provisions And

here like the Indian Act, the Black Lung Disease, the Wellness Program, that restaurants have to have a calorie count of major menus, et cetera. Now, some of them cost money. And there are loads of them. And some of Now, what is

your argument that just because the heart of the bill is gone, that has nothing to do with the validity of these 76

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

other provisions, both those that cost money, or at least those that cost no money. Do you want to make an

argument in that respect, that destroying the heart of the bill does not blow up the entire bill; it blows up the heart of the bill. I just would like to hear what

you have to say about that. MR. FARR: Well, Justice Breyer, I think

what I would say is if one goes back to the, what I think is the proper severability standard and say, would Congress rather have not -- no bill as opposed to the bill with whatever is severed from it. It seems to me

when you are talking about provisions that don't have anything to do with the minimum coverage provision, there is no reason to answer that question as any other way than yes, Congress would have wanted the -­ JUSTICE KENNEDY: or a hypothetical Congress? (Laughter.) MR. FARR: An objective Congress, Your The -- the real Congress

Honor, not the -- specific not with a vote count. JUSTICE SCALIA: to that false choice? MR. FARR: Well -­ You only have two choices, Why put -- why put Congress

JUSTICE SCALIA: Congress.

You have the whole bill or you can have, you 77

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

can have parts of the bill or no bill at all. false choice? MR. FARR:

Why that

I think the reason is because The Court

severability is by necessity a blunt tool.

doesn't have, even if it had the inclination, doesn't essentially have the authority to retool the statute -­ JUSTICE BREYER: politics. I would say stay out of But the, the

That's for Congress; not us.

question here is, you've read all these cases, or dozens, have you ever found a severability case where the Court ever said: Well, the heart of the thing is

gone; and, therefore, we strike down these other provisions that have nothing to do with it which could stand on their feet independently and can be funded separately or don't require money at all. MR. FARR: I think the accurate answer would I

be, I am not aware of a modern case that says that.

think there probably are cases in the '20s and '30s that would be more like that. If I could just take one second to raise the economist brief because Justice Alito raised it earlier. I just want to make one simple point. Leaving aside the

whole balancing thing, if one looks at the economist brief, it's very important to note that when they are talking about one side of the balance -- if may I 78

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

finish. CHIEF JUSTICE ROBERTS: MR. FARR: Certainly.

When they are talking about the

balance, they are not just talking about the minimum coverage provision. They very carefully word it to say

the minimum coverage provision and the subsidy programs. And then so when you are doing the mathematical balancing, the subsidy programs are extremely large. They -- in the year 2020, they are expected to be over $100 billion in that one year alone. So if you are Thank

looking at the numbers, please consider that. you. CHIEF JUSTICE ROBERTS:

Thank you, Mr. Farr.

Mr. Clement, you have four minutes remaining. REBUTTAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONERS JUSTICE SOTOMAYOR: -- Amicis' point, he

says that Congress didn't go into this Act to impose minimum coverage. They went into the Act to have a

different purpose, i.e., to get people coverage jury when they needed it, to increase coverage for people, but this is only a tool. But other States -- going back

to my original point, that are other tools besides minimum coverage that Congress can achieve these goals. 79

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So if we strike just a tool, why should we strike the whole Act, when Congress has other tools available? MR. CLEMENT: Mr. Chief Justice, I will make

four points in rebuttal, but I will start with Justice Sotomayor's question; which is to simply say this isn't just a tool; it's the principal tool, Congress identified it as an essential tool. tool to make it work. make it affordable. It's not just a

It's a tool to pay for it, to And again, that's not my

characterization; that's Congress's characterization in subfinding I on page 43a of the government's brief. Now, that bring me to my first point in rebuttal, which is Mr. Kneedler says quite correctly, tells this Court, don't look at the budgetary implications. The problem with that, though, is once

it's common ground, that the individual mandate is in the statute at least in part to make community rating and guaranteed-issue affordable, that really is all you have to identify. That establishes the essential link You don't have to figure

that it's there to pay for it.

out exactly how much that is and which box -- I mean, it clearly is a substantial part of it, because what they were trying to do was take healthy individuals and put them into the risk pool, and this is quoting their finding, which is in order -- they put people into the 80

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

market "which will lower premiums." their intent was.

So that's what

So you don't have to get to the -- the final number. You know that's what was going on here, and

that's reason alone to sever it. Now the government -- Mr. Kneedler also says there is an easy dividing line between what they want to keep and what they want to dish out. The problem with

that is that, you know, you read their brief and you might think oh, there is a guaranteed-issue and a community rating provision subtitle in the bill. is not. To figure out what they are talking about you have to go to page 6 of their brief, of their opening severability brief, where they tell you what is in and what's out. And the easy dividing line they There

suggest is actually between 300g(a)(1) and 300g(a)(2), because on community rating they don't -- they say that (a)(1) goes, but then they say (a)(2) has to stay, because that's the way that you'll have some sort of, kind of Potemkin community rating for the exchanges. But if you actually look at those provisions, (a)(2) makes all these references to (a)(1). work. Now, in getting back to the -- an inquiry 81

Alderson Reporting Company

It just doesn't

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that I think this Court actually can approach, is to look at what Congress was trying to do, you need look no further than look than the title of this statute: Patient Protection and Affordable Care. I agree with

Mr. Farr that community rating and guaranteed-issue were the crown jewels of this Act. to provide patient protection. affordable? They were what was trying And what made it If you strike down

The individual mandate.

guaranteed-issue, community rating and the individual mandate, there is nothing left to the heart of the Act. And that takes me to my last point, which is simply this court in Buckley created a halfway house and it took Congress 40 years to try to deal with the situation, when contrary to any time of their intent, they had to try to figure out what are we going to do when we are stuck with this ban on contributions, but we can't get at expenditures because the Court told us we couldn't? house. And for 40 years they worked in that halfway The

Why make them do that in health care?

choice is to give Congress the task of fixing this statute, the residuum of this statute after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate. close choice. I don't think that is a

If the individual mandate is

unconstitutional, the rest of the Act should fall. 82

Alderson Reporting Company

Official - Subject to Final Review

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Clement.

CHIEF JUSTICE ROBERTS:

Thank you,

Mr. Farr, you were invited by this Court to brief and argue in these cases in support of the decision below on severability. You have ably carried

out responsibility for which we are grateful. Case Number 11-393 is submitted. We will

continue argument in Case Number 11-400 this afternoon. (Whereupon, at 11:49 a.m., the case in the above-entitled matter was submitted.)

83

Alderson Reporting Company

Official - Subject to Final Review

84

A ability 44:25 able 27:13 56:24 57:6,9,9,11 ably 83:5 about's 74:14 above-entitled 1:21 83:10 absence 65:4 absolutely 10:3 63:21 abstract 10:2 accept 25:4 36:13 46:8 69:11 accepted76:16 access 49:18 51:2 54:13 55:2 accurate 61:11 78:16 accurately 57:5 achieve 79:25 acknowledge 74:1 act 4:13,16 9:8,9 14:15,17 15:12 15:20 16:5,14 16:24 23:1,17 23:19 24:10 25:6,18 26:2,12 27:22,25 28:19 28:24 29:22 30:3,21 31:12 33:11,19,22 34:25 36:2,4 37:22 40:8,16 42:15,18 43:25 44:1,2,3,8,11 44:13,17,19,24 45:13,16,17,20 45:24 47:15,16 47:19,22 48:20 49:3,9,13,15 54:1,2 55:16 57:17 59:15,16

59:20 61:23 62:7,20 65:8,8 66:11,22 67:4 68:7,11 70:1 72:1,5,7,9 74:24 75:13 76:19 79:19,20 80:2 82:6,10,25 action 20:13 29:16,17,20 70:7,9 actions 71:11 activity 63:13 65:2,15,17 Acts 65:10 actuarial 54:7,11 61:8 add 51:22 added42:2 additional 54:11 69:13,14 address 12:13 69:3 addressed19:7 42:13 addressing 10:1 31:12 35:17 54:6 adjudicates 29:24 adjusted5:13 70:17 75:5 adjustments 70:14 admit 15:7 16:22 adopt 20:6 adopted49:25 54:18 adopting 51:11 adopts 69:17 advance 49:9,12 52:10 advancing 63:22 63:23 advantageous

55:3 adverse 40:24 54:14 56:18 59:3,11,14 60:7 62:3 66:23 67:3 67:12 advisory 13:14 advocating 69:18 69:24 70:9 71:2 73:13 affect 36:20 52:8 affirmative 29:20 afford 56:24 57:10 affordable 4:22 7:1 14:22 49:18 50:16,17,21 51:2 55:2 56:14 56:17 57:3 65:8 80:9,18 82:4,8 afternoon 83:8 age 61:12,19,22 75:4,5 ages 70:20 agree 8:25 10:25 46:11 63:16 67:24 68:15 82:4 aims 63:23 airline 17:12 AL 1:4,8,12,16 aligned30:11 Alito 24:25 25:3 25:16 33:17 41:10 52:20 78:21 Alito's 34:7 42:25 53:11 allied31:3 allow33:12 altering 72:23 altogether19:19 51:10 Amendment 38:2

Americans 23:25 Amicis 79:18 amicus 2:6 3:10 25:11 41:11 53:1 55:21 amount 24:13,14 31:18 60:10,23 amounts 48:8 analogies 47:12 analysis 18:4 33:14 68:21 and-a-half 47:23 48:13 Angeles 34:13 annual 59:17 answer7:8 9:21 9:25 20:4,4 22:16 25:22 26:11 33:5 37:18 38:12 40:4,7 42:24 70:25,25 75:11 77:14 78:16 answered19:24 answers 37:8 anticipated69:7 74:24 Anticipation 48:1 Anti-Injunction 30:3,21 33:11 anybody 30:8 anymore 75:7 apart 29:8 appear 53:20 APPEARANC... 1:24 appendix 6:8 62:17 74:13 applied18:4 applies 57:5 71:12 apply 17:7,24 18:10 23:7 28:24,25 31:13 34:3

appoint 23:3 approach 13:21 15:2 18:11 66:2 71:23 73:3,3 82:1 appropriations 16:9 areas 22:25 23:18 46:15 argue 28:16 83:4 argued23:4 36:9 65:9 arguing 15:10 66:15 argument 1:22 3:2,5,8,11 4:4,8 6:19 16:3 23:10 23:14 25:17 28:10 41:11 42:13 46:8,19 46:20 47:8 55:20 76:13,24 77:3 79:16 83:8 arises 33:14 Article 28:17 34:3,6 articulated49:10 aside 78:22 asked17:25 19:24 37:15,19 44:7 69:6 asking 9:1 17:6 24:4 50:20 68:22,23 aspect 44:11 aspects 13:18 assess 43:17 Association 54:3 assume 6:20 43:1,4,13 64:10 75:16 76:15 assuming 41:18 67:23 assumption 37:1 48:22 51:24

Alderson Reporting Company

Official - Subject to Final Review

85

54:22 assumptions 52:4,5 attach 16:21 attractive 60:1 augment 51:22 authority 78:6 authorized59:20 authorizes 59:17 available 8:4 80:2 average 60:1,8 avoid 28:4 aware 72:25 78:17 awesome 43:18 a.m 1:23 4:2 83:9 B B 17:11 64:16 back 5:5 21:2 23:4 34:18 47:7 61:3 68:20,23 77:8 79:23 81:25 background 54:2 bad 10:18 73:7,8 balance 34:19 35:14 53:20 78:25 79:4 balanced50:19 balancing 53:4 78:23 79:8 ballpark 41:19 ban 22:3,4 82:16 band 61:22 70:22 bankrupt 48:2,6 48:12 bankrupting 72:11 bar 33:11 BARTOW 2:5 3:9 55:20 based12:23 13:4 18:10 38:22

48:22 51:24 60:4 72:22 74:5 basic 4:21 9:2 10:20 47:18 basically 12:23 13:25 20:7 25:25 38:23 74:21 basis 11:4,8 33:13 62:23 bear 29:8 becoming 57:3 beginning 7:23 64:14 behalf 1:25 2:3 3:4,7,13 4:9 28:11 79:17 believe 28:22 33:8 65:25,25 70:4 believed62:23 believer18:8 benchmark 74:10 75:1,4,6 benefits 14:18 16:14 best 8:17 13:4,10 44:15 56:2 better7:17 12:6 12:8 14:23 22:7 26:11 35:11 67:9 beyond 30:23 37:7 41:24 big 18:8 20:4 26:14,15 bigger26:4 bill 38:9,21 42:1 76:18,24 77:4,4 77:5,10,11,25 78:1,1 81:11 billion 41:13,15 41:16,17,22 43:2,2 47:25 53:2 79:10

biosimilar 23:18 biosimilarity 22:24 Biosimilars 15:12 bit 9:17 66:21 68:3 bitter6:24 black 16:13 24:1 27:9 76:19 Blackmun 19:7 blend 37:13,16 37:16,17 blow77:4 blows 77:4 blunt 78:4 Booker13:10,17 13:19 14:8 44:15,16 49:10 bottom 7:6,8 box 80:21 Brady 31:11 bragging 68:13 branch19:25 brand 10:24 breast 22:24 23:16 Breyer22:14 23:13,16 27:6 31:16 45:23 46:13 76:12 77:7 78:7 Breyer's 25:24 33:5 brief 6:8 13:7 41:11 53:1 60:25 62:17 74:13 78:21,24 80:11 81:9,14 81:15 83:4 briefed36:19 bright 73:23 bring 32:3 33:21 70:7,9 76:6 80:12

case 4:4,5 7:10 15:7 21:8 28:15 31:9,10,10 32:3 32:9 33:9,14 34:9 40:7 41:2 44:6 45:2,10,11 55:25 75:20 76:1 78:10,17 83:7,8,9 cases 9:15 13:10 19:5 20:10 21:22 31:6 44:11 49:11 78:9,18 83:4 cause 4:25 29:15 29:16,20 40:24 caused59:14 CBO 66:21,23 67:2 center16:24 centered37:8 central 44:17 49:24 56:12 68:7 certain 18:11 26:6,8,10 52:1 C certainly 14:9 C 3:1 4:1 48:23 56:11 cabin 73:22 58:17 71:10 calculate 74:16 79:2 calculated74:10 cetera 76:21 calculating 74:23 challenge 30:6 call 10:9 20:12 30:14,19 31:25 calorie 76:21 33:12 70:2 campaign 21:12 challenged30:20 care 4:22 7:2,17 35:18 62:22 27:8 29:4 32:17 challenges 69:25 39:20,21 48:19 challenging 49:18 50:16,17 33:21 51:2,4 55:2 chance 22:11 65:8 82:4,19 change 29:22 carefully 79:5 34:2 60:8 69:8 carried31:22 69:9 70:10,21 83:5 75:4 carry 50:24 changes 14:17

bringing 29:5 32:9 59:15 broad 49:15 69:12 broader21:8,20 broadly 12:14 68:9 Brock 14:9 19:8 brokered39:9 bronze 13:2 Buckley 21:24 21:25 28:5 82:12 budget 42:1 budgetary 43:10 80:14 bugaboo 37:10 built 51:12 burned58:21 burns 58:14 business 1:4 4:5 31:12 businesses 29:1 49:19,21 buy 51:17

Alderson Reporting Company

Official - Subject to Final Review

86

48:15 characteristics 58:2 characterization 80:10,10 charge 55:13 61:14 charged61:18 61:19 Chief 4:3,10 16:6 16:16 18:18 26:3,7,8,24 27:1,17 28:7,12 29:2,15 33:4 35:23 40:1,14 40:18 41:1,9 42:6,16 48:21 50:13 55:17,22 69:1,6,18 70:2 71:1 79:2,13 80:3 83:1 choice 14:25 32:8 72:10 77:22 78:2 82:20,24 choices 72:22 77:24 choose 7:24 8:22 chop 19:1 cited16:13 citizens 29:1 clarify 18:6 CLASS 23:1,19 clause 10:1 34:2 62:24 63:8,9,19 63:20 64:21 clean 26:13 82:23 clear 10:14 11:23 62:15 66:24 clearly 13:12 32:14 80:22 Clement 1:25 3:3 3:12 4:7,8,10 5:20 6:22 7:8

8:2,13,20,25 9:4,14,19,24 10:19 11:2,13 12:11 13:6,16 14:14 15:4 16:16 18:2,8,22 19:4 20:3,11,14 20:20 21:1,5 22:13 23:12 24:5 25:1,2,15 26:4,10,18,25 27:16 28:8 46:5 46:10 79:14,16 80:3 83:2 clerks 38:7 39:16 39:21 climb 58:9 close 23:5 82:24 closely 22:2 26:1 30:11 31:3 closer73:20 cobble 27:14 code 51:13 55:4 coherent 22:1 colleagues 19:20 collecting 31:24 colloquial 63:9 colloquy 17:4 combat 62:2 combination14:1 come 31:20 54:16 72:4 74:4 comes 48:4 71:12 72:12 76:1 commerce 62:19 62:24 63:8,9 64:18,21 Commissioners 54:4 committee 42:1 47:2 common10:23 46:1 80:16 community 4:15

4:24 5:24 11:5 11:11,20,24 12:24 22:18,19 24:8,9,23 25:10 28:1 40:11 61:18 66:6,15 68:10,18 73:19 74:20 75:15 80:17 81:11,18 81:21 82:5,9 community-rat... 4:19 6:3,11 52:16,22 54:20 55:11 56:1,5 59:8 companies 36:6 42:4 48:3 52:24 53:5,5 56:20 58:8 67:7,9,13 72:11,13,14 company 61:13 70:4 71:13,14 71:17,17 comparable 13:5 compare 11:24 31:6 comparisons 74:5 competence 43:17 completely 17:12 17:17 45:18 complex 39:11 complimentary 50:15 compromise 39:9 concede 14:16 concedes 4:14 conceivable 65:17 concerned6:19 57:13 concerted27:3 conclude 28:18 concluded67:11

conclusion 18:14 67:13 condition 22:20 conducive 63:22 conference 47:1 confronted45:12 Congress 4:14 4:17,20 5:15,22 5:25 6:4,9,19 6:25 7:7,12,13 7:13,16,21,21 7:25 8:4,5,9,21 9:3,6,7,13,25 10:6,14 12:5,10 12:19 13:14 14:4,18,23 16:4 16:11 17:9,17 18:23,23 19:2 19:12,16,21 22:5,11,17 26:13 27:13 32:15,16,17,21 32:23 33:23 34:17,18,18 35:9 36:6,8 38:16 40:12,22 41:6 42:20 43:7 44:18 45:24 47:19 48:15,17 49:3,23 50:3,6 50:8,9,11,18 51:12,14,16,17 51:22 52:4 53:3 53:4,19 54:5,7 54:16,25 55:3,7 55:9,14 56:11 56:12,22 59:6 59:13 61:5,7,10 61:23 62:2,12 62:14,20 63:16 63:24 64:14,15 64:19,23 65:13 65:18 66:1,5,12 66:19 68:23 70:5,10,11 71:3

71:25 72:1,16 72:23 73:5 76:9 77:10,15,16,17 77:19,21,25 78:8 79:19,25 80:2,6 82:2,13 82:20 congressional 9:20 10:21 20:24 35:7,8 66:4 Congress's 4:21 6:6,25 40:20 49:10 50:18,23 51:1,7 52:10,12 53:23 54:22 58:19 73:10 80:10 connected15:22 15:22,23,24 32:1 consequence 10:5,7 consequences 34:9 43:22,25 69:9,13 conservative 15:2 consider28:15 28:23 32:2,25 33:15 34:18 35:14 36:8 71:23 79:11 consistent 13:9 14:8,9 28:17 50:18 conspicuously 41:7 constant 60:11 Constitution 22:10 28:17 constitutional 10:11 15:17,19 31:8 48:23 consumers 67:8

Alderson Reporting Company

Official - Subject to Final Review

87

contemplate 29:5 contemplated 51:18 context 62:14,19 63:8,9 64:18 contexts 19:20 continue 4:3 30:13 49:9,12 51:7 83:8 continues 30:9 continuing 29:12 contradicted 66:20 contrary 45:9 52:12,12 76:15 82:14 contributes 60:11 contribution 21:13,15,18 22:4,10 contributions 22:1 82:16 control 54:17,19 controversial 26:22 convenient 16:10 convert 38:24 core 25:18 27:21 27:25 corn 10:9,17 17:5 correct 38:16,17 54:8 67:24 69:5 76:9 correctly 80:13 cost 4:25 6:17,18 29:8 51:25 52:4 52:5,25 53:2 76:22 77:1,2 costs 6:20 41:12 41:14 48:7 52:23 54:19 61:8 Counsel 5:4 66:3

count 38:24 76:21 77:20 counteract 4:21 country 51:20 couple 5:20,21 6:22 20:17 26:15 course 6:6,7 8:2 19:9 69:3,20 70:9 court 1:1,22 4:11 8:15,19,23 9:1 10:22,24 12:16 13:24 14:3,10 18:16 20:1 21:11,14,15,25 22:3,8 23:4 28:13,14,18,22 29:1 30:17 31:11 32:20,21 32:22,25 33:16 34:10 35:17 36:7,18,19,21 37:4,22 38:6,24 40:22 41:24 44:18,20 46:24 47:5 48:15 50:7 55:23 62:11,15 62:21,23 63:11 63:20 65:13,14 68:5,22 69:17 69:19 70:7,8,10 70:12 71:3,6,8 71:21 72:22,24 73:14 74:11 76:2,16 78:4,11 80:14 82:1,12 82:17 83:3 courts 48:17 Court's 9:15 18:3 32:12 34:8 35:6 37:2,11 38:20 38:25 43:6,10 44:1 53:17 64:20

Court-appointed 2:6 3:10 55:21 cover48:7,7 58:8 59:25 71:16 coverage 5:13 7:22 28:16 33:2 40:9,10,21 42:20,22 47:20 47:22 48:2,4 49:4,16 51:19 52:7,13,15 54:8 54:21 56:4,13 56:13 57:15 58:22,24 59:9 59:11 61:15 62:1,21 63:18 65:1,11 66:8,14 66:16,25 68:12 68:17 69:20 70:5,11 72:3 73:15 75:12,13 75:17 76:5 77:13 79:5,6,20 79:21,22,25 covered48:19 52:18 56:23 63:6 covers 60:6 crashed58:21 crashes 58:13 create 60:4 created82:12 creates 40:8 creating 63:3 credit 24:13 28:3 49:19 credits 15:22 24:13 30:19 51:5,6 55:7 67:8 criminalizing 65:22 critical 24:12 crown 68:11 82:6 crux 62:5

64:3 degree 34:11 delighted11:14 democracy 19:25 21:21 democratic 22:7 72:17 denies 31:7 D Department 1:15 D 1:25 3:3,12 4:1 2:3 4:6 4:8 79:16 Deputy 2:2 Daimler/Chrys... description 34:15 73:16 dare 21:24 designed49:17 Davis 34:12 desired50:5 day 8:6 23:20 destroying 77:3 days 26:15 detail 14:13 deal 26:15 59:14 determination 82:13 48:24 dealing 31:7 dictionary 63:25 59:10 64:5,8 death 66:7,20 differ23:8 67:21 difference 39:13 debate 5:1,2,3 52:21 62:25 68:1 75:2 decades 21:2,2,2 different 10:22 22:5 13:13 14:6 decide 14:23 15:10,16 17:19 17:13 27:22 20:1 35:3 45:19 29:20 38:10 46:6 55:13 57:4 decided13:11 59:22 62:2 67:4 decision 35:6 70:20 79:21 45:12 71:20 differential 72:25 83:5 61:12 declared17:16 differently 9:17 25:5 12:4 declaring 7:25 difficulties 15:17 decline 60:24 72:23 73:21 deemed40:12 difficulty 15:19 defense 71:18 72:21 deference 71:24 direct 33:11 72:16 directed52:8 deferred71:7 68:9 deficit 72:2 direction 5:2 definition 19:1 directly 19:21

curiae 2:6 3:10 55:21 current 12:22 currently 46:18 cut 7:3 14:2,7 34:25 43:3 50:4 54:25

Alderson Reporting Company

Official - Subject to Final Review

88

31:9 71:1 disagree 41:17 50:25 disappear 68:20 discreet 51:3 discretion 37:3 37:11,17 discretionary 71:7 discriminate 55:12 discuss 47:14 71:4 discussion 32:11 67:1 disease 24:1 76:19 dish24:19 81:8 dispassionately 34:19 disposition 25:8 25:9 dispositions 25:7 disproportionate 24:20 disputing 60:22 dissent 13:21 distort 35:6 distortion 72:18 district 23:4 dividing 10:22 11:10 40:9 81:7 81:16 doctors 22:25 23:17 doing 5:7 43:20 46:24 55:14,14 79:7 dollars 47:25 doubt 52:2 dozen59:13 dozens 78:10 draw73:23 drawn 49:7 dream 46:22

driving 56:3 drug 23:18 65:15 65:15,16,22 dug 26:21 D.C 1:18,25 2:3 2:5 E E 3:1 4:1,1 earlier35:25 70:16,19 75:3 78:21 easy 12:25 26:13 26:20 34:2,4 39:16,21,21 40:7 63:23 81:7 81:16 echoing 35:25 economic 63:13 65:2 67:13 69:9 economist 78:21 78:23 economists 5:5 5:16,16 41:11 42:2 53:1 economy 64:17 EDWIN 2:2 3:6 28:10 effect 34:22,23 42:12,14 44:9 44:14 47:22 48:4,16 49:20 67:12 72:2 effective 63:4 effectively 55:11 63:10 effectiveness 70:23 effects 55:3 64:17 effectuating 50:3 efficient 60:22 effort 27:4 Eighth 38:2 either61:17

65:22 67:21,22 eliminate 35:13 embodied50:11 employees 24:17 employer15:23 24:15,16,16 49:18 51:19 55:12 employers 51:3 51:5,12,16,17 51:21,23 55:5,6 enables 73:5 enact 62:24 70:24 enacted10:6 30:25 31:2,5 53:19 enacting 61:23 72:7,12 enforceable 71:19 enforcement 71:11 English64:10 enhance 49:17 enormous 38:9 enormously 35:2 enrollment 59:17 entire 28:19 77:4 entirety 65:10 envisioned12:10 equals 43:2 equitable 35:16 ERISA 65:7 especially 7:15 ESQ 1:25 2:2,5 3:3,6,9,12 essential 4:17 6:10,13 11:19 38:16 40:13 41:6,8 44:24 63:3,7,10,12 64:4,24 65:1,7 65:7,16 66:13 80:7,19

essentially 57:8 59:11 67:8 74:10,16 75:12 76:4 78:6 establishes 80:19 establishing 61:10,12 et 1:4,8,12,16 76:21 etcetera 23:1 everybody 10:21 10:25 57:5 61:18,19 68:13 74:4 evidence 66:5,11 evident 51:1 exact 65:3,5 exactly 8:13 19:10 36:17 39:10,24 40:2 61:15 80:21 example 12:8 13:10 21:7,24 29:21 44:16 45:5,6 52:25 56:2 61:13,21 65:12 71:11 examples 5:23 21:6 exchange 24:14 exchanges 6:14 6:14 11:19,21 11:22,25 12:2,7 12:9,15,20,21 15:21 24:11,12 24:15,17 28:2 31:20 67:6 74:1 74:3 81:21 excised45:3 excluded56:7 excuse 57:18 62:16 68:17 exercise 27:20 34:8 36:10 37:3

43:5,18 exercising 36:3 existing 54:10 expand 51:2 expanded42:20 expanding 56:12 expansion 41:16 42:3,7,9,17 expect 38:5,6 expected79:9 expects 72:23 expenditure 30:7 expenditures 22:2,4,9,10 82:17 expensive 7:4 experience 51:13 54:2 59:7 expertise 53:9 53:11 explain 34:9 explicitly 53:23 exploring 46:11 extent 73:11 extraordinary 45:20,20 extreme 36:10 extremely 79:8 F facilities 6:15 fact 5:16 34:1 47:21 68:4 69:21 75:6 fair 60:17 66:17 fairness 20:14 fall 10:17 11:15 12:20 25:6 27:23 28:20 41:2 47:17,19 49:3 54:24 65:10,23 82:25 fallback 25:3,19 falls 25:19 29:7 false 77:22 78:2

Alderson Reporting Company

Official - Subject to Final Review

89

far 16:25 23:14 24:6 46:18 Farr 2:5 3:9 55:19,20,22 56:25 57:20,23 58:4,15,17 59:1 60:17 64:2,6,11 66:17 67:16,19 67:24 69:5,17 70:8 71:22 72:20 73:11 75:10,23 77:7 77:19,23 78:3 78:16 79:3,13 82:5 83:3 fashion 73:6 federal 4:14 21:9 30:7 59:24 60:15 61:6 65:4 72:12 Federation 1:3 4:5 feeding 22:24 23:17 feet 78:14 fell 33:23 fewer46:18 52:18 56:19 60:25 fighting 27:18 figure 25:18 37:23 39:10,12 41:25 46:19 62:10 80:20 81:13 82:15 figures 5:6 42:3 final 81:3 finance 21:12 finances 41:25 financial 53:19 53:20 find 10:10 11:9 21:3 finding 6:7,7 11:17,18 40:22

59:2 62:4,10,14 62:15,18 63:1 64:22,22 65:24 76:8 80:25 findings 5:8 11:7 40:20 52:14 58:20 62:20 64:13,15 66:4 67:23 fine 27:24 finish16:20 26:8 38:18 79:1 first 5:21 11:16 13:19 29:18 33:10 41:23 45:11 57:2 59:23 64:13 67:5 69:3 74:18 80:12 fit 73:15 fix 7:7,24 8:8 19:22 22:5,12 fixing 5:19 7:14 7:16 82:20,22 floor 60:4 74:25 Florida 1:12 4:6 focus 17:8 18:16 46:15 follow15:25 16:25 18:6 23:13 24:6 25:17 57:19 68:4 following 23:13 24:6 64:15 follows 68:5 70:8 footnote 19:8 force 4:24 7:25 forever31:24 formulate 9:16 formulation19:5 forth 5:5 fortify 18:14 found 4:14,17 5:10,10 6:9

gives 64:1 giving 82:22 go 16:25 17:20 21:2 23:4 27:10 30:12 33:4 38:2 38:9 39:11 40:3 41:24 44:4 45:15 52:17 58:12 61:3,25 68:20,23 70:10 71:2 75:7 79:19 81:14 goal 4:21 6:25 49:10 51:8 52:10,13 goals 56:12 79:25 goes 31:18 63:13 67:2 77:8 81:19 going 5:5 6:23,25 G 7:4,10,11 8:9 G 4:1 8:14 12:25 13:4 gather27:4 14:1,2 16:20,21 gathering 6:15 19:17 29:8 General 2:2 30:20 32:20 generally 71:5 34:21,21 35:6 General's 25:8 35:10 38:9,18 62:16 39:8,9 42:5 generous 59:24 43:3 48:2,6,6 germane 16:17 48:12 50:22 getting 10:15 56:10,20 57:23 23:17 60:5,10 57:25 58:5 61:1,2 73:19 62:22 68:6 81:25 69:15 70:14 Ginsburg 14:14 71:8,14 72:2,6 15:4 32:8 53:22 72:9 74:2,3,7 56:16,25 74:19 75:9 give 7:13,13,16 79:23 81:4 17:25 22:11 82:15 26:12 37:9 38:6 gold 13:2 44:6 55:6 64:4 good 14:19 56:3 70:5 82:20 61:21 73:7,8 given22:16 gotten27:21 39:15 67:8 47:24 73:16 governing 51:12

14:11 45:9 46:2 70:22 78:10 four 79:14 80:4 frankly 14:21 full 72:2 fully 28:16 function 12:1,3,4 12:4 17:8,22 38:7,24 43:6 44:2 53:17 functionally 14:12 fundamental 49:2 fundamentally 15:9 41:18 funded78:14 further49:6 51:7 58:12 82:3

government 4:14 24:7 31:23 42:8 56:15 60:6,9,20 60:23,24 63:1 73:24,25 75:2,9 81:6 government's 6:8 42:17 55:25 62:5 68:5,6,19 69:2 73:21 76:15 80:11 governs 10:21 gradually 58:6 grateful 83:6 great 21:7,24 greater29:8 gross 72:18 ground 80:16 groups 57:4 guaranteed 54:12 68:10 guaranteed-iss... 66:6 guaranteed-iss... 4:15,18,25 5:24 6:2,11 11:5,11 11:20 24:8,9,24 25:10 28:2 40:11 52:16,21 53:10 54:19 55:11 56:1,5 59:8 63:5 66:15 68:17,18 71:18 73:19 74:20 75:15 80:18 81:10 82:5,9 guess 13:10 25:19 29:6 72:10 73:11 75:18 guide 37:10 guidelines 13:12 44:21 guts 50:4

Alderson Reporting Company

Official - Subject to Final Review

90

H H 2:5 3:9 55:20 64:22 habit 5:7 half 12:5,6,8,12 21:23 31:19,20 31:21,22,24 43:3 47:11 59:13 halfway 82:12,18 hand 11:12 24:22 26:5 52:22 handful 21:18 25:25 hands 5:18 happen41:20 42:9 69:19 74:7 happened38:1 39:10 59:12 happens 60:19 happy 18:10,16 hard 15:14 34:4 45:22 harder73:22,23 head 64:15 headed64:17 health 1:8,15 7:16 12:22 27:8 49:15,15 52:25 56:9 58:2 63:4 65:8 75:7 82:19 healthcare 14:17 14:22 healthy 48:10 58:1,10 59:15 80:23 hear 23:5 46:5 76:13 77:5 heard 29:16 40:4 heart 7:15 15:19 16:5 24:10 26:2 26:12 34:24 44:8 45:3,13,16 47:8,10 73:4,16 73:20 75:13

76:17,24 77:3,5 78:11 82:10 held 28:20 31:3 33:19 71:21 help 17:25 helpful 71:5 helping 23:24 HHS 4:6 high 52:25 56:8 57:13 58:3 hip 15:18 22:11 history 17:20 18:13,14 37:23 41:25 53:18 54:23 68:8 hoc 66:11 hold 46:19,20 holding 13:18 32:13 hole 41:22 hollow16:1,4,7 hollowed-out 17:1 23:15 25:20 honestly 62:8 Honor 72:20 77:20 hospital 59:18 hospitals 24:19 24:20 house 50:9 82:12 82:19 huge 45:17 HUMAN 1:8,16 hurt 30:7 husker10:9,18 17:5 hypothesis 52:1 52:2 69:20 hypothetical 17:5 34:7 77:17 I idea 9:1 29:3 66:18,19 68:10

identified36:18 80:7 identify 15:6 80:19 ignore 9:9 ignoring 66:4 II 22:19 25:13 III 2:5 3:9 34:3,6 illnesses 63:5 imaginative 64:4 imagine 31:18 imagining 46:18 immediately 8:8 implications 43:11 80:15 important 27:24 36:19 47:15 57:3 59:23 60:7 62:8 78:24 impose 5:24,25 36:5 41:12 43:6 55:6 79:19 imposed24:16 59:8 impossible 6:2 76:11 impression 24:3 45:11 Improvement 14:17 incentives 76:4,6 inclination 78:5 inclined18:12 include 28:2 included59:13 includes 10:1 income 60:4,5,12 74:25 inconsistent 20:22,25 increase 52:23 55:2 60:9,21 79:22 increases 36:1 71:24 73:10

increasing 5:10 independent 1:3 4:5 14:13 independently 12:18 17:17 78:14 Indian 14:17 23:24 27:8 76:19 indicate 62:21,22 indication 49:2,6 52:4 indications 47:16 indispensable 65:18,20 individual 4:12 4:16,17,23 5:25 6:3,9 8:5 11:18 24:7,9 41:15,19 42:8 43:3 52:6 52:6,18 58:2 60:21 70:6 75:8 80:16 82:8,9,24 individualized 12:23,24 74:21 individuals 80:23 industry 41:13 41:21 inertia 8:12,16 inextricably 32:1 infected32:12 32:17 infinite 57:8 60:16 information6:14 6:21 66:18 70:13 initial 28:22 initially 35:4 inject 73:6 inquiry 9:2 18:16 18:17 19:11 50:23 53:9 81:25 inseverable 33:1

71:20 insignificant 67:12 instance 5:11 46:2 instituting 61:17 institution 32:14 instruction 23:3 insurance 11:25 12:23 24:17 36:6 40:24 41:12,13,21 42:4,4 47:24,24 48:2,11,14,19 51:9,21,23 52:24 53:5,5 54:3,13 55:5 56:6,20 57:7,7 57:12 58:7 60:5 61:13 63:4 67:6 67:9,13 70:4,20 71:13,13,17,17 72:11,13,14 75:8 insured60:11 insurer13:3 insurers 6:15 29:6 intended4:20 12:19 17:18 18:24 22:18 36:6 43:7 47:19 74:3 intent 9:3,6,20 10:21,23 17:9 19:19 20:24 49:1,2 50:3,11 50:18,19 81:2 82:14 interconnected 15:21 16:24 interpret 19:6 interpretation 37:21 38:20 39:25 40:3

Alderson Reporting Company

Official - Subject to Final Review

91

interrupted33:7 jury 79:21 interstate 62:19 Justice 2:3 4:3 64:16,18 65:16 4:10 5:4,21 65:21 6:12 7:6,19 8:3 intrastate 65:15 8:11,14,18,21 65:20 9:4,15,18,22 intrusive 17:21 10:5,13,19 11:2 invalidation 11:13 12:2,11 69:22 13:6,16 14:14 invited83:3 15:4 16:6,16 invoking 55:4 17:2,3,5,25 involve 20:1 18:2,5,9,18,20 44:11 18:25 19:4,7,14 involved42:4 19:18 20:3,8,12 involves 21:9 20:15,18,25 issue 5:6 10:2 21:6 22:13,14 29:22 31:1 22:16 23:13,16 36:23 37:2,8 24:25 25:3,16 68:10 69:4 71:5 25:24 26:3,7,8 71:14 26:24 27:1,6,17 issues 28:15 28:7,12 29:2,15 item38:9,9 30:4,17,24 i.e 53:10 79:21 31:15,16,17 32:8,10 33:4,5 J 33:17 34:6,7,14 J 11:17 34:16 35:20,21 jewel 68:11 35:23,23,24 jewels 82:6 36:13,15,22 job15:2 37:1,7,14 38:1 join 60:2 38:5,12,15 39:1 joined22:11 39:4,7,16,20 judge 44:25 40:1,5,7,14,18 judges 14:2 41:1,9,10 42:6 judgment 14:6 42:16,23,25 20:2 27:20,21 43:12,16,20 34:9 44:5,22 45:6,10 judicial 20:13 45:23 46:13 35:16,24 36:1,4 47:1,7,10 48:1 36:10 43:18 48:9,21 49:22 judiciary 36:1 50:2,13 51:15 juries 14:1 51:24 52:20 jurisdictional 53:8,11,14,22 34:3,7 55:17,22 56:16 jurisprudence 56:25 57:18,21 18:7 58:4,16,18 59:6

32:22 33:5,8 34:1,10,14,15 35:15,21 36:12 36:15,22,25 37:6,12,16 38:1 38:11,14,17 39:1,3,6,18,23 40:6,17,20 41:5 41:23 42:11,19 43:9,15,19,23 44:5,15 45:5,8 45:15 46:23 47:4,9,13 48:5 48:13,25 50:1,7 50:25 51:19 52:3 53:3,13,16 53:25 55:18 K 56:17 69:6 Kagan 11:2,13 80:13 81:6 12:2,11 13:6,16 know5:9 9:7 20:25 21:6 13:3 14:3 17:6 22:13 39:1,4,7 17:17,23 19:9 40:7 58:4,16,18 22:21 23:8 24:2 59:6 75:10 25:23,25 26:11 KATHLEEN 1:7 37:9 40:14 keep 17:1 27:23 44:11 45:11 57:3 76:7 81:8 50:2 54:12 Kennedy 17:3 58:19 64:9,12 18:2,5,9,20 64:16,18 68:7 22:16 34:6 70:19 75:19 35:20,23,24 81:4,9 36:13,15 42:23 knowing 62:21 43:12,16,20 knows 50:5,5 51:15,24 53:8 L 53:14 67:10,17 68:25 77:16 lack 43:16 key 24:13,15 laid 54:10 kickback 10:10 large 55:12 10:18 57:16 79:8 kind 43:6,8 81:21 largely 22:6 kinds 15:5 22:22 larger63:12 65:2 Kneedler2:2 3:6 laugh 26:19 28:9,10,12 Laughter10:12 29:11,18 30:4 26:17 38:4 30:16 31:9 32:5 39:17,22 46:12

60:14,18 63:25 64:2,3,7,9 66:3 67:10,17,20 68:25 69:1,6,18 70:2 71:1,22 73:2,12 75:10 75:11,18 76:12 76:14 77:7,16 77:21,24 78:7 78:21 79:2,13 79:18 80:3,4 83:1 justices 18:11 37:19 justiciability 32:24 37:13

47:3 67:18 77:18 law19:15 21:12 29:9 30:15 32:9 35:1,4,13 38:7 39:4 50:8,10,11 53:19,21 62:24 65:22 69:8 72:9 laws 55:10 lawsuit 33:21 leave 25:20 26:5 32:21,23 34:17 35:8 44:9,9 45:14 52:15 58:12,13 76:13 leaving 5:18 78:22 led66:19 left 10:4 22:4,5 23:15 25:20 44:14 54:9 76:3 82:10 legislation 10:9 21:3 27:3 39:9 69:13 72:24 legislative 5:7 8:12,16 10:23 14:13 16:19 17:20 18:12,13 19:19 20:2 37:23 38:21 41:24 49:1,2 50:11 53:18 54:23 66:9 68:8 legislator 21:17 legitimately 30:25 31:2,5 let's 7:23 11:2 22:17 26:12 37:7 71:7,22,22 76:14 level 20:21 23:22 light 8:17 limit 22:9 35:17 limits 21:15 22:1

Alderson Reporting Company

Official - Subject to Final Review

92

35:16 limp 12:17 line 7:6,9 11:10 16:20 29:10 40:4,9,15,19 49:7 59:25 61:7 73:23 81:7,16 link 80:19 links 11:20 19:12 list 46:13 litigation 29:5,10 29:13 69:14 little 9:16 44:11 66:20 68:3 71:23 loads 76:23 loaf 12:6,6,6,8,8 12:12 21:23 47:11 long 14:17 51:14 55:5 longer69:25 look 6:25 7:21 9:5,6,15 11:10 11:16 15:20 18:13 20:7 22:9 22:17,21 24:18 37:23 38:15,21 39:8,14,15 43:10 44:2 49:11 50:16,19 53:17 58:20 62:15 65:24 74:5,11 80:14 81:22 82:2,2,3 looked6:4 21:25 40:15 58:21 looking 6:13 9:12 14:9 16:19 37:21 43:25 44:1 61:24 66:12 74:15,16 79:11 looks 9:2 58:20 64:21 68:8

12:19 13:8,13 14:4 18:23 19:10 March 1:19 market 4:24 11:24 45:18 51:10 52:7,19 53:6 54:7,15,18 55:14 58:12,13 76:7,8 81:1 markets 56:6 63:4 market-based 54:17 Massachusetts 5:12 61:21 M 70:24 magnitude 5:1 master23:3 main 44:13 materials 66:9 major76:21 mathematical majority 13:21 79:7 28:24 44:23 matter1:21 7:9 50:8 76:16 8:3 10:2 17:7 making 20:2 17:22 28:22 32:24 35:15 37:20 mandate 4:12,16 38:19 72:7 4:17,23 5:25 83:10 6:3,10 7:11 8:5 matters 37:12 11:6,18 12:4 52:17 22:18,19 24:7,9 mean 6:13,16,23 24:15,16,23 10:8 13:17 25:5 28:1 29:7 14:18 16:3,8,12 41:15,20 42:8 16:13,22 20:5 43:3 48:22 21:1,21 23:2,6 60:19 70:6 25:23 26:5,18 80:16 82:8,10 27:2,17 29:4 82:24 30:22 37:24 mandated51:17 39:7 41:23 44:4 70:5 46:13 49:3 50:2 mandates 15:23 60:17 63:20 70:24 68:2,7,17 69:22 mandatory 5:13 73:25 76:10 7:22 13:15 24:7 80:21 44:16,19 72:3 meaning 63:9 manner4:20 66:13

78:23 Lopez63:11 65:3 65:5 Los 34:13 lost 41:20 68:1,3 68:6 lot 13:7 16:8 27:5 34:22 46:8 62:2 76:6,18 lower56:8 57:14 57:22,23 81:1 lowered51:25 lung 16:13 24:1 27:10 76:19 Lyons 34:13

means 10:15 40:3 63:10,16 63:21 meant 68:14 Medicaid 15:25 28:3 41:16 42:3 42:7,9,17,20 51:8 53:6 Medicare 24:19 28:3 29:21,23 29:24 48:16,18 48:18 member10:24 mentioned15:13 67:5 menus 76:21 merits 37:17 middle 16:11 milk 17:13 million41:19 47:23 48:13,19 51:20 millions 28:25 46:25 48:17 56:6,7 mind 57:4 76:1 minimum 7:5 28:16 33:2 40:9 40:10,21 42:22 47:20,22 48:1,3 49:4,16 52:7,13 52:15 54:8,21 56:3 57:15 58:22,24 59:9 59:10 61:25 62:21 63:18 65:1,11 66:8,14 66:16,25 68:12 68:17 69:20 70:11 73:14 75:12,13,16 76:5 77:13 79:4 79:6,20,25 minutes 79:14 miscellaneous

27:5 misconceptions 59:5 mix 60:8 model 6:1,4 7:23 modern 78:17 moment 45:16 59:1 monetary 43:24 money 7:3 30:7 31:22,24 72:4 76:22 77:1,2 78:15 months 66:22 morning 4:4 move 35:14 36:16,22 37:7 37:15 62:6,7 moving 16:22 must-hire 14:12 N N 3:1,1 4:1 narrow70:22 national 1:3 4:4 54:3 64:17 65:7 Native 23:25 necessary 10:16 33:15 63:19,19 63:21 necessity 78:4 need17:6 48:11 70:14 82:2 needed79:22 needy 24:21 never29:16 34:23 35:9 36:6 39:7 46:2 new20:6,8 36:7 41:15 72:7 76:2 nice 56:22 nondiscriminat... 58:24 75:14 non-severability 33:18

Alderson Reporting Company

Official - Subject to Final Review

93

73:18 80:15 ones 29:6 36:20 50:6 67:4 71:15 open56:5 opening 81:15 operate 4:19 12:18,19 13:13 13:14 14:5 17:16 18:23 19:10 42:1,18 45:18 operated13:9 14:12 operating 49:5 O operation 4:18 O 3:1 4:1 6:10 11:19 15:1 objective 17:21 67:6 17:22 18:9,10 opinion 14:10,11 18:15,17,20 19:8 21:16 19:17 23:7 67:11 77:19 opinions 18:3 objectively 22:17 20:23 46:14 objectives 63:22 opposed66:12 obligations 36:21 77:10 obvious 29:6 opposite 36:3 obviously 57:7 opt 61:1 74:18 options 8:4,9 occasion 28:14 73:9 occasions 63:21 oral 1:21 3:2,5,8 offer51:4 4:8 28:10 55:20 offering 51:5,6 order5:1 80:25 offset 41:14 ordinarily 47:5 offsets 15:24 original 79:24 off-the-cuff 24:3 ought 30:12 56:2 25:24 outset 55:24 oh 81:10 out-of-pocket okay 10:7,10,11 61:8 13:1 14:15 overall 60:23 19:18 22:18,20 overturn 35:2 23:21 24:1,19 P old 56:9 58:9 68:20,23 P 4:1 older58:6 package 33:23 once 19:1 27:21 40:10,12 49:8 50:4 58:7 65:24 52:11 54:24

note 78:24 notes 60:24 notion 47:18 notwithstanding 13:12 November66:21 number4:4 17:11,11 57:16 81:4 83:7,8 numbers 41:17 79:11 numerous 63:21 nurses 22:25

58:23 68:14 page 3:2 11:17 62:16 74:12 80:11 81:14 pages 16:12 27:9 38:3 pale 74:2 parallel 31:10 parliamentary 39:11 part 13:19 14:11 24:21 49:24 61:5 62:8 63:12 65:1,7 66:1,9 68:7,14 69:25 80:17,22 participants 53:6 participate 58:11 particular14:7 29:12 49:8 63:2 74:14 particularly 30:19 72:22 parties 29:14 46:25,25 parts 16:7 17:8 78:1 party 17:10,11 32:12 33:15,16 pass 17:18 passage 27:2 passed5:12 6:21 10:14 13:14 16:4,7 17:15 19:2 26:23 27:5 38:22 50:8,10 50:12 66:22 passes 45:24 path 8:1,22 patient 4:21 7:1 50:15,20 82:4,7 patients 48:20 PAUL 1:25 3:3 3:12 4:8 79:16 pay 31:19 75:2,2

75:9 80:8,20 peek 18:12 penalty 51:3 55:6 people 4:24 5:18 11:24 12:25 31:14 36:20,21 39:15 40:23 47:23 48:14 49:22,23 51:20 52:17,18 55:13 56:6,8,13,19 56:23 57:4,6,11 57:16,25 58:5,8 58:9,10,10,13 59:15,17,24 60:8,25 61:1,6 64:10 67:25 69:8 75:7 76:7 79:21,22 80:25 percent 5:6 59:24,25 61:6 percentage 60:11 perfect 12:7 perfectly 12:3 18:9 period 51:14 periods 59:17 peripheral 46:14 46:16,17 periphery 15:7 15:11 27:18,23 27:24 46:7 person 60:5,10 Petitioners 1:5 1:13 2:1 3:4,13 4:9 28:19,25 79:17 pick 13:3 62:6 picks 60:9 61:7 picture 20:5 piece 19:1 21:3 27:2 pieces 19:11 pipe 46:22

place 11:16 22:4 29:18,23 32:10 33:10 35:8 43:10 45:14 76:4 plain 66:13 plaintiff 35:19 plaintiffs 62:6 65:9 74:13 plan 74:10,17,19 75:1,4,6 plans 53:1 55:12 74:20 play 69:15 played69:10 pleas 71:2 please 4:11 28:13 35:22 37:14 55:23 79:11 plus 43:2 67:5 point 7:10 13:17 13:20 16:2 20:15 21:8,20 25:24 26:6,9,10 26:19,25 29:19 30:17 32:23 34:3 43:13 45:16 46:9,17 46:19 47:23,25 50:10 52:9,11 60:18,22 61:4 64:6,23 68:16 75:25 78:22 79:18,24 80:12 82:11 pointed11:7 22:23 40:8 70:16 points 56:16 67:3 80:4 policies 6:16 51:25 policy 13:1,2,2 24:14 37:9

Alderson Reporting Company

Official - Subject to Final Review

94

61:14 71:13,14 political 38:23 politics 78:8 pool 57:25 58:5 80:24 poor 56:9 75:7 portion 7:25 position 25:4 33:25 42:9,17 53:15 55:25 62:5 69:2,11,18 69:24 71:1 72:1 73:13,22 76:16 positively 10:3 possibility 43:5 72:21 possible 46:10 56:22 59:9 71:24 possibly 16:3 30:15 31:22 65:9 post 66:11 postpone 59:2 Potemkin 81:21 poverty 59:25 61:7 power7:21 8:19 8:23 34:8 35:16 36:1,4,10 37:5 37:8 43:18 62:24 powers 21:22 22:8 practical 22:15 25:22 practice 21:1 preceding 64:22 precisely 56:11 61:11 preexisting 55:10 63:5 preferred44:18 premise 35:25 36:14 73:12

premium 56:24 60:1,10 61:19 61:20 74:16 premiums 4:25 7:4 56:21 57:2 60:8 81:1 present 54:7,11 presumably 27:12 presume 19:15 20:9 presumption 19:15 20:9,16 pretty 23:5 preventive 48:19 previous 16:10 pre-existing 22:20 price 12:23 24:14 27:7 55:3 56:17 57:8,9,10 prices 5:10,17 56:8,14 principal 80:6 Printz31:10 36:17 prior44:6 51:13 56:7 57:24 private 51:9 74:13 probability 43:2 probably 78:18 problem8:8 22:12 34:7 50:14 54:5,15 56:18 58:4 62:1 62:13 66:3 74:21 80:15 81:8 82:23 problems 19:23 34:3 40:25 procedural 17:14 procedure 30:1 69:7 proceed32:6

process 16:1 provision 5:13 35:7,8 38:21 7:15,20,22 10:7 69:7 72:17 73:7 14:12 15:11 products 74:4,5 22:11 24:19 program72:13 25:6 27:8,10 74:8,9 76:20 28:16,20 29:12 programs 61:17 29:14 30:6 33:2 70:23 79:6,8 33:9,18,19,22 promise 22:23 34:20,20 35:17 promote 50:22 36:4 40:9,11,21 promoted19:20 40:23 41:2 promotes 50:17 42:22 44:19 50:20 47:20,23 48:4 promoting 22:25 49:4,16,19 proper32:6,11 50:19 51:23 43:5 63:19 52:7,13 54:9,23 68:21 77:9 56:4 57:15 properly 32:25 58:22,24 59:9 proposal 17:11 59:11 62:1,22 17:11 29:3 63:15,18 65:1 68:19 65:11 66:25 propose 23:9,12 68:12 69:20,23 proposed25:7,7 70:11 71:18,19 proposition 9:12 71:20 72:3 10:6,20 25:4 73:15 74:14,22 28:19 74:22,24 75:5 proscription 75:12,14 76:3,5 10:11 77:13 79:5,6 prosecutors 14:2 81:11 protection 4:22 provisions 4:15 7:1 50:15,20 5:14 9:8,8,10 82:4,7 10:3 11:6 13:5 protections 13:11 14:7 15:6 55:10 15:12,17,18 prove 5:16,16 16:18 19:12 proven6:16 21:11,13,18 proves 21:7 25:10 26:1 27:6 30:16 27:11,19,22,25 provide 11:24 28:24 30:5,25 12:24 36:8 31:1,11,13 60:24 82:7 32:13,16 33:1 provides 13:3 34:22 35:1 36:2 60:20 41:4,7,8 44:3 providing 4:21 44:17 45:17,21 7:1 47:21 49:5,8,9

49:12,17,24 51:11 52:1,22 52:23 54:9 55:1 56:1,4 58:25 59:14 67:4 74:12 75:15,17 75:20,21 76:18 77:1,12 78:13 81:22 public 49:14,15 punishment 45:1 purchase 51:23 purchasers 51:6 pure 61:17 purpose 31:19 31:19,21 44:13 50:23 51:1 79:21 purposes 49:13 49:15 50:15 put 27:8,9,11,14 35:4 61:25 72:10 77:21,21 80:23,25 puts 71:25 Q quarrel 73:12 quest 62:9 question 6:1 7:9 7:12 8:10,15,16 9:25 12:5,16 13:8 14:19 16:23,25 17:24 20:4,5,5 22:15 22:15 28:23 32:19 33:6 35:3 36:23 37:18,19 39:24 40:2,5 42:25 44:12 46:5 49:1 50:7 53:11 66:18 68:2,22 71:1,9 74:15,18 75:18 77:14 78:9 80:5

Alderson Reporting Company

Official - Subject to Final Review

95

questioning 70:3 questions 5:20 34:4,4 36:18 37:3 70:16 quickly 26:23 quite 6:1 26:22 36:3 51:15 53:23 62:8,15 80:13 quote 65:3,5 76:17 quoting 64:20 80:24 R R 4:1 Raich 65:14 raise 56:20 71:17 78:20 raised56:8 78:21 raising 61:8 rampant 59:12 Randall 21:10 range 69:12 ratchet 20:16 rated11:25 rates 17:12 29:23,25 48:16 48:18 52:17 54:17 55:13 57:14,14,21,23 58:1,3,9,12 75:7 rating 4:15,24 5:24 24:8,10,23 25:10 28:1 40:12 61:18 68:10,18 73:19 74:20 75:15 80:17 81:11,18 81:21 82:5,9 ratings 11:6,11 11:21 12:25 66:6,15 ratio 70:20

rational 17:7,22 reach 18:15 reached14:10 reaching 48:24 read 11:17 22:22 40:16 78:9 81:9 reading 23:10 76:8 real 62:13 68:22 77:16 realistic 46:24 reality 8:17 9:11 18:3 27:2 56:23 really 7:12 9:9 12:20 16:13 19:13 26:2 32:10 38:2,5 44:13 45:7,10 50:5 72:15 80:18 reason 21:4,21 36:7 44:22,23 48:5 52:5 63:7 77:14 78:3 81:5 reasons 32:23 64:12 71:7 reauthorization 16:8 reauthorized 16:9 reauthorizing 14:16 rebuttal 3:11 79:16 80:4,13 rebutted20:9 recognize 8:15 recommended 25:9 reconsider35:10 35:11 record 66:9 redo 14:18 reduces 73:9 redux 28:4 reenacted26:14

references 81:23 referring 65:6 69:2 reflected52:14 58:19 refocus 75:18 reforms 40:10 41:12 45:18 refused21:4 refuted47:21 Regan 49:11 regardless 61:19 regime 36:7 regulate 65:20 65:21 regulation 17:13 23:18 65:2,5,15 65:16 regulatory 63:12 63:14 66:1 reimbursed42:5 reimbursement 29:21,23,25 48:18 reject 28:18 46:7 rejected5:25 6:5 rejects 13:21 related22:2 26:1 26:1 31:1 relatively 74:2 relatives 74:2 relevant 5:22 relief 33:15 34:12 35:19 rely 14:10 19:8 62:11 relying 53:22 63:2 remainder28:6 remained36:5 44:21 remaining 9:10 69:25 79:15 remains 60:11 remedial 9:2

13:18 34:8 35:16 repeal 72:5,6,8 repeatedly 30:17 report 47:2 66:21 request 44:9 requesting 15:1 require 78:15 required13:22 requirement 63:3 64:25 65:4 requirements 47:25 requiring 51:23 resembles 44:6 reserve 28:6 residuum 82:21 resolve 71:10 resolved37:21 respect 37:24 50:25 59:21 62:25 77:3 respecting 72:16 Respondents 2:4 3:7 28:11 responses 5:21 9:14 15:5 responsibility 49:18 83:6 rest 4:13 8:7 22:20,21 25:6 29:9 42:14,15 42:18 44:10,12 44:14,20 62:7 72:5,7,8 82:25 restaurants 76:20 restraint 35:16 35:20,25 result 8:17 48:20 retool 78:6 revenue 15:24 41:15 review30:1 revolution 39:2

rid 19:18 27:21 76:17 right 5:17 6:1 8:2 9:23,24 10:5,18 11:4 20:11 21:1 21:5 23:12 27:16 36:25 37:6 39:24 40:2 47:13 50:13 59:19 60:15 67:16 rights 36:20 rise 54:24 60:9 rising 6:20 risk 36:5 43:6,8 43:17 67:12,25 68:24 80:24 risks 54:7,11 70:13 71:15 ROBERTS 4:3 16:6 18:18 26:3 26:8,24 27:1 28:7 29:2,15 33:4 35:23 40:1 40:14,18 41:1,9 42:6,16 48:21 50:13 55:17 69:1,6 70:2 79:2,13 83:1 roles 48:14 roughly 41:13 rule 20:6,8 rules 17:14 ruling 72:24 run 52:12 runs 59:12 S S 2:2 3:1,6 4:1 28:10 salvage 15:2,3 save 7:3 saver6:17,18 saying 6:2 11:5 22:16 29:5 46:2

Alderson Reporting Company

Official - Subject to Final Review

96

46:6 48:10,25 51:16 53:8 65:18 67:11 73:7 76:9 says 9:7 19:9,15 19:18 20:7 25:11,12 31:18 44:8 58:21 63:3 63:11,11 64:14 64:24 65:25 71:14 75:5 78:17 79:19 80:13 81:6 scale 20:17 Scalia 8:11,14 9:4,15,18,22 10:5,13,19 17:5 17:25 19:18 30:4,17,24 31:17 34:14,16 38:1,5 39:20 44:5,22 45:6,10 47:1 48:1 49:22 50:2 57:18,21 60:14,18 63:25 64:2,3,7,9 71:22 73:2,12 75:11 76:14 77:21,24 Scalia's 39:16 40:5 75:18 scheme 63:12,14 66:1 scratch 14:20 Sebelius 1:7 4:5 second 31:21 32:25 59:3 61:4 64:24 65:12 69:2 74:21 78:20 SECRETARY 1:7 section 63:11 65:14 see 31:25 38:21

63:23 seek 70:10 seeking 51:22 seeks 35:19 seen 59:6 70:18 segue 21:8 selection 40:25 54:14 56:18 59:3,11,14 60:7 62:3 66:23 67:3 67:7 selections 67:9 selling 61:13 Senate 10:16 72:6 sending 34:18 sense 21:21 64:8 sentence 63:2 64:24 sentencing 13:12 13:25 44:17,20 separate 17:7 33:21 separated33:24 separately 16:12 78:15 separation 21:22 22:8 serve 22:25 23:17 24:20 56:12 service 13:4 65:8 SERVICES 1:8 1:16 set 48:7 58:1 74:9 sever 13:11 19:16,22 21:4 21:22 81:5 severability 9:2 9:16 10:1 15:15 19:6 20:23 28:15 29:16 31:13 32:7 33:13,14 36:18

37:18,20,24 39:4 44:10 46:8 62:17 68:21 71:9 72:25 77:9 78:4,10 81:15 83:5 severable 9:9 19:22 43:14 67:14 severed20:7 75:21 77:11 severing 15:8 71:23 SG 23:6 66:14 share 24:20 sharp 11:10 40:8 40:18 sheet 53:20 shell 16:2,4,7 17:1 23:15 25:20 shenanigans 39:11 shifting 54:6,10 show47:11 59:18 59:18 70:13 showing 71:25 72:16 shown 54:22 sick 54:13 58:8 58:11 side 21:19 32:19 44:8 68:4 78:25 sign 59:19 significance 67:25 significant 43:4 silver13:1 74:17 simple 78:22 simplest 19:17 simply 8:25 30:6 59:8 61:24 65:17 71:2 80:5 82:12,22 single 13:23 25:6

33:20,22 sit 31:23 situation 7:18 12:22 36:17 38:23 82:14 situations 12:12 71:6,10 skyrocket 5:1 slate 26:13 82:23 slightly 10:22 small 49:19,20 51:5 smaller20:21 Solicitor 2:2 25:8 62:16 solution 54:17 solutions 5:11 solve 62:1 somebody 32:2 46:20 71:12 somebody's 16:21 somewhat 63:17 Sorrell 21:11 sorry 26:6 64:2 sort 8:23 16:1 21:7 25:17,22 37:9 62:9 67:7 68:8 81:20 Sotomayor 5:4 5:21 6:12 7:6 7:19 8:3,18,21 17:2 18:25 19:4 19:14 20:3,8,12 20:15,18 31:15 32:11 35:21 36:22 37:1,7,14 38:12,15 47:7 47:10 48:9 66:3 67:20 79:18 Sotomayor's 80:5 sought 34:12 sound 67:16 speak 64:10

speaking 64:10 special 23:3 29:25 specific 20:4,5 77:20 specifically 6:4,9 62:18 spend 23:10 27:17 spiral 5:17 66:7 67:21 spirals 66:20 spoke 56:18 square 9:11 stand 4:13,16,19 23:23 32:17 62:10 78:14 standard 17:6 77:9 standardized 74:4,17 standing 25:21 30:6,9,18,21 32:14,14 34:11 36:23 standpoint 22:8 start 7:23 10:25 11:2 14:20 60:8 80:4 started32:11 starting 25:24 state 6:14 21:9 54:2 58:22 statement 20:22 statements 64:21 states 1:1,22 5:9 5:23 6:17 48:3 58:20 59:7 61:10,11,16,20 61:24 65:19 70:17,21 76:2 79:23 statute 7:14 8:8 10:17 13:22

Alderson Reporting Company

Official - Subject to Final Review

97

15:7,11 18:22 18:25 19:2 21:9 21:9,25 22:6 31:7 40:4 44:18 45:3 49:25 65:13 66:25 71:19 73:4,17 73:20 78:6 80:17 82:3,21 82:21 statute's 73:4 statutory 29:25 37:20 38:19 39:25 40:2 stay 78:7 81:19 staying 32:9 stick 12:14 stop 24:18 48:23 straight 9:1 50:14 strains 18:4 strange 33:12 street 39:12 stricken36:5 43:4 44:24 strike 7:10,20 8:5,7 10:3,13 15:13 21:15,19 22:1 25:9,11,12 26:5 28:4 35:7 36:10 44:7 45:20 78:12 80:1,1 82:8 strikes 36:1 striking 6:18 36:11 47:10 strong 16:2 strongest 15:8 struck 10:8 13:23 21:11 22:3 23:6 26:12 29:9 30:11 31:11 33:10,13 42:10,18 44:13 44:20 45:2 46:3

55:15 56:2 70:12 76:2 82:22 structure 37:22 37:24 44:2 47:15,16 53:18 60:3 66:11 structured19:25 stuck 82:16 stuff 22:22 23:19 23:25 55:7 subfinding 80:11 submit 38:20 submitted83:7 83:10 subsidies 59:21 59:23 60:3,20 60:23 61:2,4,22 subsidized51:14 55:5 subsidizes 61:7 subsidy 59:25 72:12 74:8,9,9 74:23 75:9 79:6 79:8 substantial 43:1 67:12 80:22 substantially 52:23 substantive 44:3 subtitle 81:11 sue 71:16 sufficient 66:2 suggest 10:23 11:3 16:13 18:6 23:2 25:14,16 36:2 64:12 81:17 suggested39:8 49:7 suggesting 8:18 67:1 suggestion 68:5 68:6 suggests 24:8

talked42:7 75:3 talking 16:15 23:20 27:6 32:10 43:24 64:16,19,25 68:24 70:19 74:14 77:12 78:25 79:3,4 81:13 talks 9:19 46:7 66:23 67:3 task 7:12,14,16 9:16 38:20 82:20,22 tautological 19:7 tax 15:22 24:13 24:13 28:2 30:19 31:18,18 33:9,9,12 51:5 51:6,13 52:25 55:4,6,6 taxes 30:19 taxpayer30:8,8 tell 6:15 16:17 41:3 81:15 telling 10:16 43:21 tells 19:21 80:14 tended70:21 T term 65:19 T 3:1,1 terms 47:14 take 6:24 7:2 test 17:4,19,23 8:19,22 9:1 18:6,20 19:17 11:14 18:12 23:7 49:10 22:15 29:4 testimony 54:3 32:12,17 45:13 tests 18:9 52:15 54:20 text 10:25 11:3 60:19 68:24 11:10,14,23 71:9 73:3,14,18 37:22,23 39:14 75:1 76:3 78:20 39:15 41:24 80:23 44:2 47:14 taken7:15 53:18 54:1,22 takes 82:11 textual 11:4,8 talk 20:23 57:2 18:15,17 62:9 59:2,3 textually 15:20

45:9 53:11 suit 33:11 suitable 51:4 support 60:15 83:4 supports 13:17 13:20 suppose 17:10 33:17,18 supposed11:22 11:23 12:17 17:24 23:7 41:14 47:17 Supreme 1:1,22 sure 9:6,18 17:3 18:2 21:3 23:23 25:2 52:2 72:14 surely 16:18 suspect 26:20,21 27:5 31:17 sweeping 28:19 sweet 6:24 system56:7,9,10 57:14,24 58:13 58:21 61:1 63:17 68:20,24 72:11 systems 70:17

18:10 Thank 28:7,12 55:17 79:11,13 83:1 theory 21:14 thing 8:6,11 14:3 20:17,20 21:19 21:23 23:18,24 29:7 30:2 32:21 46:1 47:17 55:9 58:7 60:13 61:5 74:7 75:6 78:11 78:23 things 6:22 7:3,3 11:15 14:15,21 16:15 20:1 29:22 35:12 46:7,14 52:10 52:11 53:4,7,23 54:24 57:1,12 59:22 60:18 62:2 70:18 75:25 think 5:22 6:22 6:23 7:2,17 8:14,24 10:19 11:3,21 12:11 12:16,20 13:4,9 13:17,19 14:8 14:16,22 15:5,9 15:13,14 16:2,3 18:3,11,13 20:14 21:5,6,7 21:10,17,21 22:7 25:15,23 26:11 27:11,19 27:19,24 28:4 29:11 30:16 31:17 32:5,22 33:1,7 34:16 35:15 36:12,15 37:12,20 39:18 39:18,23,23 40:6 41:5,5 42:2,11,13 43:9

Alderson Reporting Company

Official - Subject to Final Review

98

43:23 44:15,22 44:23 45:2,19 45:23 46:10,23 47:11 48:5 51:1 52:3,6 53:4,17 54:24 55:25 58:18 59:5 62:5 62:13 63:23 64:6,11 65:24 66:2,7,17 68:1 68:3,9,21 69:18 70:25 71:5,15 72:15 73:15,18 73:21,22 74:1 75:23,25 77:7,9 78:3,16,18 81:10 82:1,23 thinking 31:16 31:17 61:24 thinks 46:16,16 73:24 third 60:13 thought 9:6 14:4 38:12,18 48:9 thoughts 69:15 three 37:15 47:25 52:11 53:23 59:22 61:12 throw16:11 throwing 15:3 thrown 48:14 ticks 20:17 tied11:6 15:18 24:7 time 27:18 28:6 38:23 51:14 59:19,20 66:24 71:12 82:14 times 18:4 37:15 42:21 title 24:21 25:11 25:12,12,25 50:14 65:14 76:3 82:3

titles 22:19 45:25 45:25 46:1 today 48:11 70:3 73:13 told 62:12 82:17 tool 75:14,17,19 75:22 78:4 79:23 80:1,6,6 80:7,8,8 tools 75:24 79:24 80:2 top 54:10 total 24:3 totally 38:8 toto 35:12 touched21:14 traditional 55:4,7 traffic 65:15,21 65:22,23 tried5:23 6:17 16:17 21:25 22:5 true 5:5 9:22 30:2 52:20 60:19 64:8 76:17 try 8:8 20:3 39:10 41:25 46:20,20 62:2 82:13,15 trying 54:16,25 62:10 80:23 82:2,6 tumbling 72:12 turn 24:12 37:17 46:17 62:4 turns 21:10 two 9:14 13:18 15:4 19:12 32:23 37:3 47:12,23,25 48:13 50:14 54:9 56:4 57:1 61:22 66:16 67:22 76:3

unsuccessfully W 22:6 wait 40:23 59:19 unsustainable want 7:6,13,13 58:14 60:15 7:16 8:24 9:4 unwind 48:17 10:4 12:5,13 U upward 5:2 17:20 18:6 unable 11:9 usage 65:12 19:16 25:16,22 56:13,14 use 25:24 29:21 26:19 27:17,23 uncommon45:24 55:4 66:13 28:4 32:16 38:2 unconstitutional useful 63:10,22 38:18 47:11 4:13 5:12 15:13 66:1 76:10 53:9 65:21 17:16 25:5 uses 64:23 65:19 66:24 67:10,14 28:21 31:4,21 usual 73:6 67:20,22,22 33:20 35:18 Utah 12:3 76:14,15 77:2 69:21,22 71:21 78:22 81:7,8 V 82:25 wanted8:7 9:13 v 1:6,14 4:5,6 undercut 63:14 21:17 34:23,24 34:13 76:2 63:17 54:8 56:11 validity 29:12,24 undercuts 65:4 62:20,22 77:15 76:25 underserved wanting 20:15 22:25 23:17,25 value 61:8 wants 14:23 variance 61:20 understand 17:10,11 62:15 variety 51:7 10:24 18:19 73:5 74:11 42:24 51:15,18 various 5:10 6:15 Washington 1:18 18:3 21:11 53:14 1:25 2:3,5 vary 5:6 understood wasn't 68:12 vast 28:23 75:10 way 10:22 11:22 vehicle 16:19 underwriting 14:8 21:16 22:1 venality 10:11 12:24 75:8 32:6 35:5,9 unhealthier58:6 Vermont 21:12 46:19 49:20 21:17 unhealthy 57:11 58:7 59:9 65:3 uninsured54:12 view11:14 31:10 65:19 67:16 69:10 United1:1,22 70:5 74:8 77:15 violate 10:10 65:19 76:2 81:20 unobjectionable virtually 20:22 ways 45:19 51:3 vision 12:21 27:12 51:7 unquestionably visits 48:19 Wednesday 1:19 volume 26:4,14 14:15 49:14 Wellness 76:20 unrealistic 34:17 vote 10:16 27:7,9 went 31:12 79:20 77:20 38:8 50:4 weren't 50:6 unrelated17:12 voted17:15 we're 9:12 29:8 34:24 49:24 45:18 49:16 32:10,20 50:3 votes 27:4,14 51:9 64:25 70:3 71:8 35:2,3 72:6,8 unresponsive 71:8,14,15,25 25:17 we've 20:7,9

77:24 tying 53:23 type 70:6 typically 61:16

Alderson Reporting Company

Official - Subject to Final Review

99

2 2 17:11 47:23 81:19,22 2,700 38:3 2.5 48:13 20s 78:18 X 200 59:24 x 1:2,9,11,17 2009 66:21 31:19,19,21 2012 1:19 71:21 2014 71:12 Y 2020 79:9 Y31:18 year 23:10 59:20 21 65:14 25-year-old 79:9,10 61:14 years 16:10

23:20 26:12 42:7 whatnot 51:12 whimsical 68:2 whip 38:24 willing 71:15 wise 37:4 woodenly 19:6 word 13:23 22:23 37:10 63:7,19 64:24 66:7 79:5 work 7:23 9:10 9:11 11:22 19:13 24:11,22 29:3 46:9 54:19 54:21 56:11 58:23 70:18,18 75:15,17,20,25 80:8 81:24 worked22:7 70:22 82:18 works 7:2 58:7 world 30:13 worse 12:12 21:23 52:17 54:15 67:7 wouldn't 6:20 15:14 19:16 27:13 39:5 73:2 wreck 32:20 wrecking 15:1 write 67:10 wrong 5:17 19:14 20:18,20 41:18 42:3

41:22 53:2 67:6 82:13,18 yesterday 23:20 48:11 York 76:2 young 58:9 younger76:7 $ $100 79:10 $12,000 61:15 $217 53:2 $350 41:22 $4,000 61:14 $700 41:13 1 1 17:11 61:21 81:19,23 1.5 61:20 10 5:6 16:10 41:22 53:2 10-year 41:12 10:19 1:23 4:2 11-393 1:5 4:4 83:7 11-400 1:13 4:6 83:8 11:49 83:9 150 51:19

250 61:6 26 47:24 26-year-olds 48:10 2700 16:12 27:9 28 1:19 3:7 3 3 67:5 30 5:7 30s 78:18 300g(a)(1) 81:17 300g(a)(2) 81:17 32 48:19 350 41:14,16,16 41:19 43:2,2 4 4 3:4 22:5 66:22 40 82:13,18 42 62:16 64:23 43 11:17 64:23 43a 62:16 80:11 43(a)of 6:8 5 5 16:10 55 3:10 6 6 81:14 60 72:6,8 60-year-old 61:14 64A 74:12 68A 74:14,22 7 7 19:8 43:3 79 3:13 8 80 59:25 801 65:14 9

90s 59:7 61:16 922(q) 63:11

Alderson Reporting Company

Sign up to vote on this title
UsefulNot useful